Volume 52 — New Hampshire Reports

Case, against a deputy sheriff for not paying to another deputy, upon demand, the proceeds of certain property sold on mesne process.

Assumpsit, by George S. Yeaton against John H. Brown and Charles Warren. The cause was referred to a referee, who made his report to the court, upon which the plaintiff moved for judgment. The depositions of the referee and others were laid before the court for the purpose of showing what was submitted to the referee, and the reasons and grounds of his conclusions.

In Equity. This cause having been tried by the court at the October trial term, 1871, the following facts were found: The plaintiffs are a banking corporation, holding all their deposits, funds, and accumulations in trust for depositors.

<p>Under our statutes neither interest nor infamy is any disqualification as a witness, whether as a party or otherwise.</p> <p>Nor are those disqualifications any longer operative, which, being founded . upon grounds of public policy, such as the fear of producing dissensions and'strife in families and encouraging perjury, were held at common law sufficient to exclude husbands and wives from testifying for or against each other in all cases.</p> <p>Instead, therefore, of the common law rule that the wife could not testify for or against her husband, and vice versa, for the double reason that their interests were identical, and that it was also contrary to sound public policy, the rule in this State now is that husband and wife may elect and be compelled to testify for or against each other in all cases where the court can see that their examination as witnesses upon the points to which their testimony is offered will not lead to a violation of marital confidence.</p> <p>Therefore, when one party to a suit is an executor or administrator, and does not elect to testify, although the other party is thus precluded from being a witness, yet his wife, may be called as a witness, either for or against her husband, where no violation of marital confidence is involved.</p> <p>Conversations between the husband and third persons, and which were heard by the wife, would not ordinarily come within this exception.</p> <p>And when the wife acted as the agent of the husband, in a matter requiring no special confidence, and where no such confidence is bestowed, and where any other person could have acted just as well, she may ordinarily state any facts learned in the course of such agency.</p> <p>Where any part of the consideration of a contract is illegal, that may vitiate the whole contract; but where a ¡Dart of the consideration of a contract with one party is a contract of the other party, which is. void or voidable, but not illegal, that does not taint the whole consideration, or make void what would otherwise he valid.</p> <p>Crawford v. Parsons, 18 N. H. 293, questioned.</p>

Action, by John S. Lamprey against Ebenezer Peaslee and another, on a note dated Haverhill, Mass., July 7, 1857, payable two months after date to Joseph Eitts, of said Haverhill, who is still the plaintiff' in interest. Writ dated Eeb. 28, 1870. Lamprey pleaded, — first, the general issue; second, a discharge under the insolvent laws of Massachusetts ; and third, the statute of limitations.

Assumpsit, by George G. Brewster, executor of Staniel Brewster, against Lewis W. Brewster and Mary G. Brewster, executors of Chas. W. Brewster. The declaration contained a count for money had and received, and another framed specially upon the writing below set forth.

<p>Petition for a writ of mandamus. The facts are stated in the opinion of the court.</p>

<p>In Equity. Samuel Lord against Charles W. Brooks, administrator, and others. Samuel Lord, the complainant, asks for the direction of the court in the discharge of his duties as trustee. The defendants are Charles W. Brooks, administrator with the will annexed of Charlotte A. H. Brooks, and the heirs-at-law of Augustus Lord. The administrator having filed an answer, the plaintiff put in a general replication, and evidence was offered by both the plaintiff and the administrator. No answer was filed by the heirs of Augustus Lord, but counsel appeared for them and furnished a brief.</p> <p>The following facts appeared:</p> <p>July 22, 1839, Mrs. Charlotte A. H. Lord, the widow of Augustus Lord, was the owner of 40 shares in the Piscataqua Bank, derived from her late husband. Upon that date, she, together with Samuel Lord and Charles Brooks, entered into a written contract under seal. This contract recited Mrs. Lord’s ownership of the- shares, and the source of her title; also, that a marriage between Mrs. Lord and Mr. Brooks was in contemplation ; and that Mrs. Lord was desirous “ of receiving the income or dividends on said shares to her sole and separate use, notwithstanding the said contemplated marriage, for and during her natural life, and that after her decease the said 40 shares should be distributed and conveyed to and among the lieirs-at-law of the said Augustus Lord, according to the laws of distribution of the State of New Hampshire.” By said contract, Mrs. Lord (with the assent of Mr. Brooks), in consideration of one dollar, and of the covenants of the trustee, assigned said shares to Samuel Lord, in trust to “ pay the dividends of the said stock as the same may from time [to time] be made and declared, after the deduction of the tax imposed on the same to the said Charlotte; ” and after her death, to “ transfer and convey the same to and among the heirs-at-law of the said Augustus Lord, according to the statute of distributions of the State of New Hampshire.”</p> <p>On July 23, 1839, a certificate of ownership of said 40 shares was issued by the bank to Samuel Lord, trustee. The par value of said shares was one hundred dollars each. The market value in 1839 did not appear. The charter of the bank was granted in 1824, and expired in August, 1845. From 1889 to September, 1845, the bank divided three per cent, semi-annually; and those dividends were paid over by the trustee to Mrs. Brooks. Upon the back of tbe certificate is the following receipt: “ Received of Piseataqua Bank four thousand dollars, being the par value of the within certificate. July 29th, 1845.</p> <p>“ Samuel Lord.”</p> <p>Besides the above sum of four thousand dollars, Piseataqua Bank paid to the trustee the following dividends of surplus at the end of the charter:</p> <p>November, 1845, 15 per cent., $600.00</p> <p>April, 1846, 10 per cent., 400.00</p> <p>June, 1847, 3 per cent., 120.00</p> <p>August (final), 1849, 3.75 “ “ 140.-00</p> <p>$1,260.00</p> <p>With the funds thus received from the Piseataqua Bank, the trustee purchased 53 shares in the Piseataqua Exchange Bank, — 46 shares being purchased prior to April, 1846, and the remaining seven shares prior to April, 1850. The semi-annual dividend in March, 1846, was 3| per cent. From that date to September, 1862, it was 8 per cent. In 1863 and 1864 it was 1J per cent. These dividends were all paid over to Mrs. Brooks. The charter of the Piseataqua Exchange Bank was dated December, 1844, and expired August, 1865. Said bank ceased to do business in 1864; and, between November, 1864, and September, 1868, made various dividends of surplus, over and above the par value of the shares, which were received by the trustee, making not less than $8,029.50 in his hands, received on account of said 53 shares.</p> <p>The trustee, who was cashier of both banks, testified that the sums divided as above (in excess of the par value) “ were not on llandas cash in either of said banks when their charters expired, but were subsequently collected out of obligations unmatured or suspended, and were divided at intervals as above named: a part of the interest was earned but unpaid when the charters expired, and part of it grew due afterwards; — a part of the sum divided as above by the Piscataqua Exchange Bank arose from the sale of their banking-house and fixtures.” In 1864, the trustee invested ■four thousand dollars in the purchase of 40 sháres in the First National Bank, Portsmouth, N. H. In November, 1864, he consulted a lawyer, — who was the son of a sister of Augustus Lord, — as to the proper disposition of the balance of $4,029.50 in his hands. In December, 1864, the lawyer gave his. written opinion that Mrs. Brooks was entitled to receive the extra dividends as “ income.” Mr. Lord forwarded this opinion to Mrs. Brooks, and paid her one thousand dollars, — all or nearly all of which she distributed in presents to the children of the heirs of Augustus Lord, the descendants of the trustee receiving five hundred dollars. The balance of the surplus of $4,029.50 was placed by the trustee in his accounts to the credit of Mrs. Brooks, ho informing her that he held it subject to her order. It remained thus until 1869, the trustee accounting to Mrs. Brooks semi-annually for interest on the balance, as well as the interest on the 40 shares of National Bank stock. In September, 1869, another lawyer, having been consulted by the'trustee, gave his written opinion that the proceeds of the surplus bank dividends should be regarded as capital, belonging ultimately to the heirs of Augustus Lord. This opinion was sent to Mrs. Brooks by the trustee. The trustee thereupon invested three thousand dollars of the balance on hand in the purchase of bonds of the city of Portsmouth, Ohio, and has remaining, as he says, a cash balance of sixty-three dollars and fifteen cents ($63.15).</p> <p>Mrs. Brooks died November 10, 1869. The trustee is the brother, and one of the heirs of Augustus Lord. The bill alleges that the heirs of Augustus demand of the trustee that he shall pay over to them the balance of $3,063.15, and also $2,294 alleged to have been overpaid to Mrs. Brooks. The administrator pf Mrs. Brooks demands the whole of the balance, over and above the 40 shares in the First National Bank.</p> <p>The trustee brings this bill in order to have the court determine who are entitled to the balance in his hands.</p> <p>At the June term, 1871, the opinion of the court was announced as follows:</p> <p>Smith, J. We cannot agree with the plaintiff’s counsel that the deed is to be construed as if it had read “ Mrs. Brooks is to receive only what the directors may semi-annually divide as income.” The word “ dividends,” and the word “ income,” as used in this trust deed, “ both obviously mean the same thing.” It was clearly the intention that the tenant for life should, at the least, receive all the net earnings thereafter accruing from the 40 shares which should be distributed to the shareholders during her life. As the only sums in controversy were distributed as “ dividends ” eo nomine, it is unnecessary to inquire whether the tenant for life would be entitled to earnings which remained undivided ; and, as the dividends were all payable in cash, we need not consider her right to dividends made payable in stock. If it be conceded, for the purposes of this case, that the net earnings of the bank remain the property of the bank as fully as its other property till the directors declare a dividend, and that the tenant for life has no title to them prior to the dividend being declared, still, their nature remains the same all the time ; and when they are divided, the tenant for life is just as much entitled to them as though they had been divided the moment they were earned. Their source is not changed by the delay in distribution. It may often be expedient for the directors to retain a portion of the net earnings as a reserve fund to meet contingencies. This reserve fund may often be spoken of as “ capital,” irrespective of the source whence it is derived. But, when the necessity for the reservation ceases, and the reserve fund is divided among the shareholders, the question whether it is income or capital depends on its origin. If it was originally taken from the net earnings, it belongs to the tenant for life, if distributed in her lifetime. If the tenant for life would have lost these surplus earnings by dying before they were divided, that furnishes no cause for depriving her of them when she had the good fortune to survive until the distribution. We might as well deny her right to the regular semi-annual dividends declared in her lifetime, on the ground that she could not have derived any benefit from them in the event of her death immediately after the creation of the trust. It has been said that “ dividends of the assets of a corporation must be capital.” We fail to see why. If this position is correct, then all dividends which are not made from borrowed funds are capital, for they are dividends of the assets of the corporation, all net earnings being assets until they are divided.</p> <p>The evidence does not show whether the entire dividends in dispute were derived from profits earned subsequently to the creation of the trust. Unless this is conceded, a master will be appointed to examine and report the value of the 40 shares in the Piscataqua Bank, including, of course, any accumulated profits previously earned and undivided at the date of the trust deed. Such accumulated profits are to be considered as part of the capital of the trust fund then created. If the payment of the extra dividends have impaired that capital, the deficiency in the capital is to be restored by additions from the dividends. The balance of the dividends belongs to the tenant for life. As it seems to be conceded that the remainder-men are to receive the 40 shares in the First National Bank, the master will report the value of those shares at the death of the tenant for life. The court, can then see whether those shares equal in value the original 40 shares at the creation of the trust; if so, nothing need be deducted from the dividends. We see no insuperable difficulty in the master’s ascertaining these facts; nor any such difficulty as makes it expedient to adopt a different rule.</p> <p>We do not think that the loss to which the remainder-men may be subjected, by the depreciation in the value of money during the life of the tenant, should induce us to put a forced construction on the'plain and explicit language of the trust deed. It is a risk which they have to run, just as much as the tenant had to run the risk of losing the income by premature death.</p> <p>The view we have taken seems to be sustained by decisions in Pennsylvania, New York, and New Jersey. Carp’s Case, 28 Penn. St. 368; Clarkson v. Clarkson, 18 Barb. 646; Simpson v. Moore, 30 Barb. 637; Van Doren v. Olden, 4 C. E. Green 176. The earlier English decisions do not appear to be now regarded as law in that country. The recent decisions in Massachusetts—Minot v. Paine, 99 Mass. 101; Daland v. Williams, 101 Mass. 571; Leland v. Hayden, 102 Mass. 542—are not in point. The reasoning in Minot v. Paine is unsatisfactory to us. We have examined the later English decisions, but find no reasoning which induces us to come to a different conclusion from that just expressed.</p> <p>Winslow v. Haven, decided in Rockingham county, December term, 1866, is not necessarily in conflict with these views. That was an equity suit, heard upon the bill and answer. Upon such hearing the allegations of the answer were, of course, taken to be true. Rogers v. Mitchell, 41 N. H. 154. The controversy related to the -right of the tenant for life (of the “ income ”) to receive dividends made by certain State banks in Massachusetts at the time of their reorganization as National banks. The answer alleged that the State banks were, by the law of Massachusetts, required to keep constantly in their vaults a specie reserve ; that such reserve fund “ was a part and parcel of the capital stock, and no part of the profits or income of each and every of said banks; ” and the answer then averred, in substance, that the dividends in controversy were made chiefly from the sale .of said specie reserves, and were “in reality a portion of the capital of said banks.” No opinion has been reported; but, from memoranda furnished us by the then members of the court, it is quite apparent that the decision in favor of th'e remainder-men proceeded entirely on the ground that, upon the bill and answer, the court must regard these dividends as made, not from accumulated profits, but from capital. In the present case the tenant for life is not so unfortunate as to be concluded by the pleadings on this point. On the contrary, the source of the dividends is an open question, to be found and determined by the master.</p> <p>If Winslow v. Haven were more nearly in point, wre might not feel bound to follow an unreported decision, especially as the important authorities in Pennsylvania and New York do not seem to have been brought to the attention of the court (the New Jersey decision was made subsequently).</p> <p>In Wheeler v. Perry, 18 N. H. 307, there was no suggestion that the dividends in dispute were derived from earnings which had accrued since the death of the testator. On the contrary, it appeared that the value of the stock had increased largely in the lifetime of the testator ; that this increase was regarded by the testator as an increase of the capital; and that the dividends in controversy were' made from the sale of the property which had thus increased in value: in effect, being dividends of a fund which the testator in making his will treated as capital, — a fund in existence in another shape at the date of the will, and not earned since the testator’s death.</p> <p>Healey v. Toppan, 45 N. H. 243, cited by the plaintiff, is not in point. The shares in the Piscataqua Bank were not “ perishable property,” or “ wasting securities.”</p> <p> Master appointed. </p> <p>The master subsequently reported that the value of the 40 shares in “the Piscataqua Bank, at the date of the trust deed (including accumulated profits previously earned and then undivided), was less than the value of the 40 shares in the First National Bank at the death of the tenant for life.</p> <p>The plaintiff moved for a rehearing of the questions decided in the opinion delivered at the June term, 1871. After such rehearing, the following opinion of the court was announced at the June term, 1872 :</p>

In Equity. The cause was referred to a master, to ascertain and state the facts, who, after hearing the evidence, reported as follows:… Held: the ownership in fee simple of the land on which these stones were laid and proposed to be laid, subject to the rights of the plaintiffs, whatever they may be, deriving his title under a warranty deed of Benjamin Barker, bearing date June 15,1868, and by its terms conveying to the defendant the said premises in fee simple, “ subject…

Case, by Harriet S. Smith against Charles W. Wiggin, for obstructing a way which the plaintiff had across the defendant’s land by erecting a store on it, September 10, 1860, and for building- the eaves of filestore beyond the defendant’s line over the plaintiff’s land. There were five counts in the writ.

Case, by Charles Wright against Daniel H. Holbrook, for injury caused by setting a fire on land of the town of Keene, alleging that it was wittingly and rashly set by the defendant, and so carelessly managed by him that it escaped on to the plaintiff’s land adjoining, and burned up his wood, timber, and fences.

<p>As a general rule, a sum of money in gross, stipulated to be paid for the non-performance of an agreement, is considered as a penalty or security for the payment of such damages as the party in whose favor the stipulation is made may have sustained from the breach of contract by the opposite party. It will be incumbent on the party who claims to recover the sum as liquidated damages, to show that they were so considered and intended by the contracting parties.</p> <p>A, by his bond, acknowledged himself to be “ holden and firmly bound ” to B “ in the sum of one thousand dollars.” The condition of the bond was that A should not engage in a specified business within a certain time and place.</p> <p>In the absence of any evidence concerning the intention of the parties, it was held that the sum of one thousand dollars was to be regarded as a penalty, and not as liquidated damages.</p>

Assumpsit, by Lyman Woodward, Lorenzo Stearns, and Warren Adams against Morgan J. Sherman and another, brought to recover the price of three horses which,, the plaintiffs claimed were sold by their agent to the defendants.

Assumpsit, by Alonzo Bascom against Manning & Sears and trustee, to recover damages for breach of warranty in the sale of a lot of cotton. The defendants sold to the plaintiff a lot of cotton by sample, and the same was forwarded to him in Jaffrey.

<p>The trustee purchased of the defendant a hog which he took into his possession, some sugar which he mixed with his sugar, and other articles, the prices of all which were agreed upon, and took out his wallet ' to pay for them, but the writ was served upon him before he could deliver the money, and he did not deliver it; whereupon the defendant reclaimed the property. Held, that this was a sale for cash, and that the title did not pass until payment, and so no debt was created, and (the articles being exempt from attachment) the trustee was discharged.</p>

Assumpsit, by Abner P. Wellcome against Elizabeth W. Eiley. The declaration alleged “ that the defendant, at said Newport, on October 4,1870, by her note of hand of that date, by her jointly subscribed with one James L. Eiley, her husband, then in full life, but since deceased, for value received, promised the plaintiff’to pay him, or bearer, fifty dollars fifty cents, on demand, with interest annually.” To this declaration the defendant demurred, and the court sustained the…

This is an appeal by said Freeman from the decision of the selectmen of Cornish in laying out a highway, and awarding damages to the appellant. The return thereof was recorded on the 23d day of November, A. 131870, and the petition was filed on the 7th day of August, A. D. 1871. The town moved to dismiss the petition on the ground that it was not filed within sixty days after the record of the return, lie having had actual notice of the laying out.

This is assumpsit for labor and services of men, horses, carts, and harnesses, in August and September, 1870 — in all, §184.53.

Petition of James Freeman and others for a highway in Plainfield, from a point on or near the easterly bank of Connecticut river, across the river to the Vermont line. Held: as a matter of law, that evidence of offers to contribute to the expense of building the bridge could not be considered, or shown as a reason for laying out the new highway, and that in their decision they were governed by that view of the law.

Replevin, by Alonzo W. Putnam against Joseph D. Osgood, for a stock of goods in a general assortment store; also, for a horse, carriages, sleighs, and a lot of wood. Held: and instructed the jury, that this would not be sufficient to invalidate the mortgage, unless such understanding existed at the time when the mortgage was made; to which instructions the defendant excepted.

Trover, by John S. Bryant against Whitcher & Weeks, for hay. The hay once belonged to one Holmes. The plaintiff’s title was that of a purchaser at a sheriff’s sale on an execution in favor of himself against Holmes. The defendants’ title was that of purchasers from Holmes before the attachment of the hay in the plaintiff’s suit against Holmes.

Writ of entry, by William P. Hunt against Geo. W. Haven'and Jabez B. Upham, administrators of Joseph Bell, counting upon the plaintiff’s own seizin in fee, and a disseizin by the defendants. The defendants pleaded (1) Nul disseizin.

<p>Case, by John E. Gale against the town of Lisbon, to recover damages alleged to have been caused by an incumbrance in the highway.</p> <p>At the place of the accident there was a log lying in the highway, near the sidewalk, and about parallel with its western side. Upon the night before the accident a light snow, of three or four inches in depth, had fallen. The log was so covered by the new snow, that the plaintiff (as he testified) did not discover that there was anything there before he came in contact with it. It appeared that the plaintiff was driving down southerly, over the highway, with a single horse and sleigh, and overtook a large load of logs upon a sled drawn by four oxen; and seeing another single horse and sleigh coming up towards him, a rod or two beloiv the front yoke of oxen, which appeared to be coming up on the west side of said load of logs, he (plaintiff) turned to the left; and in attempting to pass on the east of this load, and between it and the sidewalk, his left sleigh-runner hit the upper end of _ the above described log, whereby the plaintiff was thrown out of his sleigh and injured. The plaintiff’s sleigh was three feet and three inches Avide in the widest part. The space betAveen the sidewalk and the load of logs was stated by different witnesses as being from four and a half to eight feet wide, and there was sufficient room on the west side of said load for both single sleighs to have met and passed each other without difficulty, where the road was well trod and smooth.</p> <p>The defendants asked the court to rule and instruct the jury that the plaintiff had the right to that part of the highway which lay upon the right of the centre of the travelled part of the highway, and Avas bound to go upon that side, and that, as matter of law, he would be in fault if he attempted to go upon the other side ; also, that the plaintiff was bound to keep to the right of the centre of the travelled track, and that if he turned to the left, and his turning to the left contributed to the accident, he could not recover: — all which the court declined to do, but did instruct them that, as between the plaintiff and the driver of the other single sleigh which was coming to meet him, each had the right, as against the other, to that part of the highway which lay to his right of the centre of the travelled track, and it was the duty of each, as between themselves, thus to turn to the right; but that, as between the plaintiff and the town, the plaintiff might pass over any part of the highway, if, in doing so, he was in the exercise of ordinary care and prudence; but that, whether he was thus in the exercise of ordinary care and prudence, was a question of fact and not of law ; that if the plaintiff was in any fault in this respect, and that fault contributed in any degree to the accident, he could not recover ; but that, if the plaintiff was in no fault that contributed at all to the accident, and his injury was caused by the insufficiency of the highway, he might recover.</p> <p>To the refusal of the court to give the instructions requested, the defendants excepted; and they also excepted to the instructions given, so far as they differed from those requested.</p> <p>Verdict for the plaintiff’, which the defendants moved to set aside.</p> <p>I. The act of the plaintiff in turning to the left was criminal, — a public misdemeanor. It was neither accidental nor necessary. The plaintiff was therefore liable to the penalty imposed by law. Gen. Stats., ch. 69, sec. 9.</p> <p>II. A person guilty of contributory negligence can never recover damages for an injury occasioned by a defendant’s mere act of negligence, unless the defendant might, by the exercise of ordinary care, after becoming aware of the plaintiff’s dangerous situation, have avoided the injury. No one is bound to anticipate and provide in advance against another’s negligence. The presumption is, that every one will exercise ordinary care. It follows, that in general there can be no recovery in such case, except where the injury is occasioned by the negligent acts of a voluntary agent present at the time, and that the question, whether a person guilty of such contributory negligence may recover against a, town damages caused by defects in a highway, can seldom or never arise. Bridge v. Railway, 3 M. & W. 244 ; Parker v. Adams, 12 Met. 419 ; Welch v. Wesson, 6 Gray 505; Spofford v. Harlow, 3 Allen 176; Lovett v. Railroad, 9 Allen 557; Kennardy. Burton, 12 Sliep. 39 ; Bisk v. Wait, 104 Mass. 71; Steele v. Burkhardt, 104 Mass. 59; Kearns v. Sowden, 104 Mass. 63, note ; Brownell v. Blagler, 5 Hill 282; Dowell v. Navigation Go., 5 E. & B. 195„; Tvffv. War-man, 2 C. B. (N. S.) 740, and same case in error, 5 O. B. (N. S.) 573 ; Dimes v. Petley, 15 Q. B. 276; Wilkinson v. Bairrie, 1 Hurl. & C. 633.</p> <p>III. That a person, engaged in the commission of a voluntary trespass, or of crime, is (1) Not in the exercise of ordinary care, and (2) That his want of such care, — that is to say, his misconduct, — contributes to produce any injury received by him while so engaged, and arising from mere acts of negligence committed by the party sought to be charged prior to the inception of the crime or wrong-doing, are, we submit, conclusions of law, and not questions of fact for the jury. Brooks v. Hart, 14 N. H. 307; Jones v. Andover, 10 Allen 18; Bosworth v. Swanzey, 10 Met. 363 ; Gfavett v. Railroad, 16 Gray 501; Grahagan v. Railroad, 1 Allen 187; Snow v. Railroad, 8 Allen 448; Foot v. Wiswall, 14 Johns. 304; — and see cases herein before and after cited.</p> <p>IY. A mere trespasser, — a fortiori, a criminal wrong-doer, — cannot recover in such case, for the further and independent reason that he is unlawfully and wrongfully there, at the place of the accident. No man is bound to anticipate that his neighbor will commit either a trespass or a crime, and cannot therefore be bound to provide in advance for his safety in that event. Where there is no duty, there can be no negligence. The distinction between mere acts of negligence committed before, and such acts committed after the defendant has become aware of the plaintiff’s misconduct, or rather of his situation in consequence thereof, is broad and obvious, and runs through all the authorities. A distinction has also been taken, in some few cases, between prior acts of mere negligence, and prior acts wilfully committed in anticipation of a trespass and with an intent to injure. Blythe v. Topham, Oro. Jac. 158 ; Brooks v. Copeland, 1 Esp. 203; Jefferies v. Buncombe, 11 East 226 ; Beane v. Clayton, 7 Taunt. 489; Ilott v. Wilkes, 3 B. & Aid. 304; Bird v. Holbrook, 4 Bing. 628; Sareh v. Blackburn, 4 O. & P. 297; Jordin v. Crump, 8 M. & W. 782; Bavies v. Mann, 10 M. & W. 546 ; Lygo v. Newbold, 9 Exchq. 302; Railway v. Harrison, 10 Exchq. 376; Cornwall v. Commissioner, 10 Exchq. 771; Fawcett v. Railway, 16 Q. B. 610 (2 E. L. & E. 289); Ricketts v. Railway, 12 C. B. 160 (12 E. L. & E. 520, and note) ; Sharrod v. Raihvay, 4 Exchq. 580; Begg v. Railway, 1 H. & N. 773 ; Hardcastle v. Railway, 4 H. & N. 67 ; Bolch v. Smith, 7 H. & N. 736 ; Hounsell v. Smyth, 7 O. B. (N. S.) 731; May v. Burdett, 9 Q. B. 101; Stone v. Jackson, 12 O. 'B. 199; Barnes v. Ward, 9 Q. B. 392 ; Bush v. Brainard, 1 Cow. 78 ; Trow v. Railroad, 24 Yt. 487; Bemis v. Railroad, 42 Yt. 375 ; Sweeney v. Railroad, 10 Allen 368 ; Flliot v. Pray, 10 Allen 378 ; Zoebisch v. Tarbell, 10 Allen 385 ; Frost v. Railroad, 10 Allen 387 ; Fox v. SacJcett, 10 Allen 535 : Woolson v. Railroad, 19 N. H. 267 ; Towns v. Railroad, •21 N. H. 363 ; Chapin v. Railroad, 39 N. H. 564; White v. Railroad, 30 N. H. 188 ; Smith v. Railroad, 35 N. H. 356 ; Shepherd v. Hees, 12 Johns. 434 ; Hartfield v. Roper, 21 Wend. 615 ; Railroad v. Munger, 5 Denio 255 ; Vanderburgh v. Truax, 4 Denio 464 ; Hoive v. Castleton, 25 Yt. 162 ; White, v. Twitchell, 25 Yt. 620 ; Howland v. Vincent, 10 Met. 371; Bryant v. Biddeford, 39 Me. 193.</p> <p>Upon the same principle rests the doctrine maintained by all the cases on the subject, so far as I can find, that a person injured by reason of defects in a highway can in no event recover damages therefor, unless he is at the time of the accident in the legitimate and proper use of the highway for some purpose for which the town is bound to maintain it. It is not enough even to show that he was merely rightfully there. Sykes v. Pawlett, 43 Yt. 446 ; Stickney v. Salem, 3 Allen 374; Blodgett v. Boston, 8 Allen 237; Heland v. Lowell, 3 Allen 407 ; Gtregory v. Adams, 14 Gray 248; Bavis v. Budley, 4 Allen 557 ; Bosworth v. Swanzey, 10 Met. 863 ; Richards v. Enfield, 13 Gray 346 ; Jones v. Andover, 10 Allen 18;. Hamilton v. Boston, 14 Allen 475; Stanton v. Railroad, 14 Allen 485; Murch v. Railroad, 29 N. H. 9; Abbott v. Wolcott, 38 Yt. 666.</p> <p>So, if a traveller voluntarily and without necessity diverge from the travelled path, and injury result, he cannot recover. Rice v. Montpelier, 19 Yt. 470 ; Cassedy v. StocJcbridge, 21 Yt. 391.</p> <p>The damage must be sustained in using the road. Grriffin v. Sanbornton, 44 N. H. 248, and cases cited; Ball v. Winchester, 32 N. H. 444 ; Holman v. Townsend, 13 Met. 297; Smith v. Dedham, 8 Gush. 524; Baxter v. Turnpike, 22 Yt. 114; Tisdale v. Norton, 8 Met. 388.</p> <p>V. In regard to the distinction taken by the court between the obligation of the plaintiff to the town and to the party whom he was meeting, it is submitted,—</p> <p>1. It is unfounded in law. No such distinction exists. The duty of the plaintiff’ to turn to the right'was not a mere private duty, owing only to the party whom he was about to meet: it was also a public duty. For a violation of the one, the plaintiff, by express provisiorf of the statute, is made liable, as indeed he would be without such provision, for all damages thereby occasioned; while, for a violation of the other, he is subjected to a criminal prosecution and to a fine to be paid to the county. 1 Bish. Cr. Law, ch. 32, sec. 532. Undoubtedly the object of the law is to provide for the safety and protection of parties meeting upon the highway, “to facilitate and render safe the public travel, and to prevent all interruptions thereof.” Brooks v. Hart, 14 N. H. 309. But the purpose of all criminal laws is the protection of individual members of society in the exercise of their rights ; and it might with quite as much propriety be said that the thief, or burglar, violates only a private duty to the party injured.</p> <p>2. Even if it were otherwise, it would make no difference here. (1) A person is not in the exercise of ordinary care while voluntarily trespassing, criminally or otherwise, upon anybody. (2) One is certainly under no more obligation to provide in advance for the safety of a wrong-doer to his neighbor, than to himself. A trespasser, who falls into a pit which a stranger has carelessly left uncovered, can no more recover against such stranger than against the land-owner. See Corby v. Hill, 4 O. B.(N. S.) 556. So, although cattle trespassing upon the field of A, adjoining to the field of B, have, as between their owner and B, a right to be there — in tlie sense that B cannot complain of their being there — yet such owner cannot recover of B any damages which they may sustain by reason of his neglect to maintain his fences, or by reason of his antecedent negligence in any particular. A man cannot, by doing a wrong to one neighbor, impose a duty upon another. The question has respect solely to the character or status of the plaintiff as a wrong-doer: to whom the wrong is done is wholly immaterial. (3) It is a conclusion of law, that a person, voluntarily and unnecessarily turning to the left, is guilty of such negligence quoad the party met as to make him responsible for all the damages thereby occasioned to such party (provided, of course, the latter exercise ordinary care). Brooks v. Hart, above cited. Suppose that both parties are injured through the joint effect of a collision and defects in the highway: if the distinction taken by the court be a sound one, it follows that the party turning to the left may at the same time, and on account of the same identical act, be punished by indictment and fine, condemned in damages to the other party, and recover of the town the damages which he himself sustained. What rule of damages would be laid down by a court which should uphold such an action against the town, affords matter of curious speculation. I venture to suggest, as not improbable, that the plaintiff would be held entitled to recover, in addition to his personal damage, the damages he may have been compelled to pay to the other party, the fine, all costs and -counsel fees, together with such further sum as the jury may think reasonable for his trouble and expenses.</p> <p>VI. The three following cases in our own reports are sometimes cited as maintáining a contrary doctrine:</p> <p>Í. Button v. Weave, 17 N. JEL 34, in which, however, the question di$ not arise. The head note is incorrect. The point decided is merely that lawful travelling on Sunday affords no objection to a recovery, and is correctly stated in Morrison’s Digest, p. 412, ¶ 357.</p> <p>2. Govey v. Bath, 35 N. EL 530, in which the point decided is precisely the same.</p> <p>Perley, C. J., says, however, in that case, — “Even if the plaintiff’s travelling on Sunday were to be held a violation of law, as the illegality of his act could have in no way contributed to the accident it would not protect the town, according to the decision in Norris v. Litchfield. In that case it was held, that though the plaintiff might have been at the time engaged in an unlawful act, it would not prevent him from recovering if the illegality of the act in no way contributed to the accident.”</p> <p>In respect to which we submit, — (1) The chief justice does not undertake to state his own opinion, but merely what he then understood to have been decided in the case referred to. (2) However that may be, it is a mere dictum, entitled to all the consideration which should be given to an off-hand opinion of one of the ablest and most learned judges, and to no more. (3) The question is not whether the illegality of the act, but whether the illegal act, contributes to the accident. - The chief justice not only confounds the two, but also wholly misconceives, we submit, the point decided in</p> <p>3. Norris v. Litchfield, 35 N. H. 271. That case went upon the ground that, under the instructions of the court below, the jury must have found (as manifestly was the fact) that the plaintiff’s turning to the left was a mere accident.</p> <p>Says Bell, J. (p. 278), — “The proper question, whether the fact that the plaintiff was on the left of the centre of the road was the fault of the plaintiff, or was a mere accident, was submitted to the jury; ” and a recurrence to the instructions given, as stated in the case, shows that it was so. At all events, the case can be sustained upon no other ground. That the doctrines laid down by Judge Bell in his opinion, as applied to the facts of that case, are in conflict with our position, is undeniable; but considered abstractly, as general propositions, we have small occasion to contest them. We do not claim that “ a wrong-doer can maintain no action whatever,” in any case, for injuries caused by another’s negligence : what we do claim has been already stated.</p> <p>We ask the especial attention of the court to that portion of the opinion of Judge Bell, to be found upon pp. 277-279, in connection with the authorities there cited, and submit that that distinguished judge quite overlooked the distinction between antecedent and subsequent negligence, and fell into an error similar to that of the court in Railroad v. Munger, 5 Denio 255, and the same case on appeal, 4, Corns. 349, there cited, but in the opposite direction. See, also, the remarks of Sargent, J., in-Winship v. Enfield, 42 N. H. 203.</p> <p>VII. Whether a given act is innocent or criminal, is always, if there be any conflict of testimony, a question for the jury.</p> <p>If an act, otherwise criminal, be purely accidental, it is innocent, and an act involuntarily committed,' if there be no want of ordinary care and prudence, may well be deemed accidental. This is in effect the doctrine of Norris v. Litchfield. But where the act is voluntary, as in this case, a different rule applies: in order to excuse or justify it, it must appear that it was necessary, that it was unavoidable. Whether it was so or not in this case was the only proper question for the jury, — there being no evidence tending to show that it was accidental or involuntary. Brooks v. Hart, 14 N. H. 312, Woods, J.; Com. v. Allen, 11 Met. 403 ; Spofford v. Harlow, 3 Allen 176 ; Regina v. Bunnett, 1 C. & K. 425 ; 1 Bish. Cr. Law, secs. 441-449; Broom’s Legal Maxims 239 ; Rathburn v. Payne, 19 Wend. 399. And the burden of proof is upon the plaintiff to show the necessity. Bosworth v. Swanzey, 10 Met. 363. Even if it were shown that the act were necessary and unavoidable, there may be ground to contend that it is mere matter in excuse of the plaintiff, and cannot enable him to maintain an action ; that the plaintiff’s “ position in such case, if not his fault, is nevertheless his misfortune, the consequences of which he cannot throw off upon another.” It was so held by Bronson, J., in Rathburn v. Payne, 19 Wend. 899-401.</p> <p>VIÍI. Upon the most favorable view for the plaintiff that can be taken of the case of Norris v. Litchfield, the instructions secondly requested should have been given.</p> <p>IX. The instructions given wholly withdrew from the jury the fact that the plaintiff turned to the left, as a circumstance to be considered by them in determining whether the plaintiff was at the time in the exercise of ordinary care. The jury were, in effect, told to lay that fact entirely out of the case.</p> <p>The party met is necessarily “injured.” “ Injured” does not refer to pecuniary damage, but to the invasion of a right. In the statute of July 2,1822, the word used was “aggrieved.” The man meeting Gale was “ aggrieved” because Gale invaded his territory. The limitation in the statute as to the person of the complainant is no more effective than the limitation as to time. If the time limited had expired, still the act was once punishable — punishable when committed. The criminality of the act could not depend upon whether complaint was made, or whether there was a person in esse who could complain. Suppose the other party met is instantly kille_d by the collision: no complaint could be made. The language of the statute is explicit, that it is a violation: “ no complaint for such violation shall be sustained, unless” &c. Suicide is not punishable, but is it not criminal ? The manifest intent of the law was to compel all persons to turn to the right. The obvious purpose of the tenth section (of ch. 69, Gen. Stats.) was to prevent malicious complaints under this statute. Our position does not rest on the ground that the act was illegal, and punishable as a crime, but that the plaintiff was where he had no right to be; that this was a violation of duty forbidden by law. No matter whether the act was criminal, if it was contrary to law.</p>

Assumpsit, by Parker & Young against J. K. Atwood. The defendant pleaded a discharge in bankruptcy, granted by the U. S. district court, under the U. S. Act of 1867.

Trover, by John S. Bryant against Joseph D. Osgood, for twenty tons of hay. The action was tried by the court. In 'March, 1867, the plaintiff conveyed to Martha J. Smith, wife of one Elijah L. Smith, a farm in Warren, taking notes for the price of the same, and taking back a mortgage thereof to secure said notes. The mortgage was given to secure the purchase money for the same, and for the personal property .thereon.

In this case — Joshua S. Blaisdell against David G. Harris — a verdict was rendered for the plaintiff at the September trial term, 1871.

Trespass, by Nathaniel K. Sterling against Alexander Warden. The first count alleged the breaking and entering of the plaintiff’s dwelling-house, July 30, 1869, and an assault upon the plaintiff and his wife. The second count alleged an assault on the plaintiff. The third count alleged an assault on the plaintiff’s wife. Plea, the general issue and a justification.

Trover, by Alpheus Hutchins against Samuel J. Gerrish, for four hundred dollars in United States .treasury notes and twenty dollars in ' silver coin, which the plaintiff contended the defendant had stolen from him. The plaintiff opened his testimony by calling the defendant to the stand and examining him as a witness.

In Equity. The bill, brought by Thomas Piper against Henry S. Hilliard, the Stewartstown bridge, and other parties, alleges that James M. Hilliard mortgaged to the plaintiff sixty-seven shares in the stock of the Stewartstown bridge, and subsequently executed several mortgages of the same stock to parties having knowledge of the plaintiff’s prior incumbrance, some of which subsequent mortgages are now held by Henry S. Hilliard.

Assumpsit, by William B. Dearth against William B. Spencer. Writ dated Dec. 19, 1866. The plaintiff claimed to recover the amount of a promissory note for thirty-five dollars, signed by the defendant and one Hiram M. Dearth, dated Nov. 7,1856, and payable to the plaintiff or order.

Assumpsit, by Milton Blodgett and Frank Blodgett, as partners, against The Berlin Mills Company, upon the common counts, including iC work, labor, and materials,” and upon an account annexed, the principal item of which (being the main part of the plaintiffs’ claim) was, — “ To 66 days’ work selves and four horses, $241.15.” Plea, the general issue, and a set-off of charges for a pair of moccasins, a horse-brush, ten pounds steel, a set of sled-runners and sled-shoes, and…

<p>Whether a cellar along the line of a public street, unprotected by a suitable barrier, constitutes a defect, is a question for the jury in an action against a city to recover damages for an injury caused by such defect; — and this, although the cellar is not in the general direction of travel, and although the plaintiff was not travelling along the street, but was crossing it, and intended to pass from the street into a lane (where he had a right to go), but mistook its locality in a dark night, and fell into the cellai\</p> <p>The admission of the plaintiff’s wife to testify to his physical condition after an injury, and to his statements, when alone with her, of suffering pain, involves no violation of marital confidence.</p>

Trespass, by South Hampton against Richard Fowler, for breaking and entering the plaintiffs’ close in Seabrook, bounded easterly by the Atlantic ocean, southerly by the State line of Massachusetts, westerly by the Blackwater river, and northerly by Hampton river. The plea is the general issue.

Assumpsit, by Hannah Manahan against John W. Noyes, for money had and received. The case was referred to an arbitrator, who found for the defendant, subject to the opinion of the court, on the following facts : The plaintiff, who was a resident of Massachusetts, bargained with the agent of one Mrs. Haseltine for certain real estate, situated in Chester, N. IT., together with certain articles of personal property, for an entire sum of $1,000.

This is a bill in equity, by John C. Blasdel, administrator on the estate of Eliza Powers, against the Portsmouth Savings Bank and Sarah E. Locke, in which the plaintiff alleges that his intestate, Eliza Powers, at various times deposited in said savings bank money in the name of Sarah E. Locke, of Maine, but for her own use, assented in writing to the by-laws of the bank, and took and retained a duplicate book of the deposits, which is now'in possession of the plaintiff;…

<p>Case, by David T. Sleeper against the town of Sandown, for injuries to the person of the plaintiff, caused by a defect in a highway which the defendants were bound to keep in repair. The defect alleged and proved was the want of a railing on one side of a bridge across the Exeter river, the bridge being a little rising twenty-six feet in .length, from fourteen to sixteen feet wide, with some plank in the middle projecting on each side considerably for the convenience of bracing the railing; and the height of the bridge was eight or nine feet.</p> <p>The testimony of the plaintiff himself tended to prove that he was totally blind, and had been for several years; and that since he became so he had .been accustomed to walk across this bridge, often alone ; sometimes ten times in one week, in going from his place, which was one mile and a half from this bridge, to and from his work. He testified that when he crossed it he always felt his way with his cane very carefully, and sometimes ran. against the railing; that on August 4, 1870, he was crossing it on foot, in the daytime, feeling his way along as lie always did, and tbe first he knew he stepped off and fell, striking his feet into the edge of the water, having got two thirds or three fourths of the way across. He said he did not stub his toe, but just walked right off. He testified that he could not tell when he was last across this bridge before this August 4. Did cross it in the winter before, with a grist on his back, to Clark’s nailí. He said there was always a railing when he had his sight. The railing on one side was proved to be off at the time of the accident, but when it came off it did not distinctly appear. A witness for the defendants testified that, on the last of June or first of July, 1870, one end of the railing was down. A witness for the plaintiff testified that it was off on May 23, 1870. Amos Clark, who lived near the bridge, testified that he saw the plaintiff soon after this accident, and went with him across the bridge towards his home, looked off the bridge at the place where the plaintiff said he fell, and saw that the ground below had been disturbed and marked, although he saw no man’s track,.and said there was no railing on the bridge' there, which was the east side, but could not tell when the railing went off. Clark said, at the place where he saw the marks quite a number of the bridge planks projected out beyond the rest.</p> <p>The plaintiff’s evidence tended to prove that after he became blind he was accustomed to do many kinds of farm work, such as chopping wood, felling trees, mowing, reaping, threshing grain, digging potatoes, planting and hoeing, although with difficulty the first time hoeing corn, and that at these various kinds of work he was a good man to hire, and was accustomed to travel the roads on foot and alone a good deal. The plaintiff was the only witness to the accident, and it appeared that the bridge was not obstructed by any person or thing upon it, and that nothing contributed to cause the accident but the absence of the rail combined with the total blindness of the plaintiff. The defendants’ evidence tended to show the bridge to be sixteen feet wide.</p> <p>The court instructed the jury that although this was in the daytime, and the plaintiff would have seen the defect and avoided it if he had been possessed of his eyesight, it would not follow, as matter of law, that he must be regarded as not in the exercise of ordinary care and prudence because he attempted to pass alone when he was totally blind, but that it was a question of fact for the jury whether he was in the exercise of ordinary care and prudence in passing under such circumstances ; that the burthen of proving such care was on the plaintiff ; that, if he was totally blind, more care would naturally be expected when travelling alone, though the standard, after all, would be ordinary'care.</p> <p>The court also instructed the jury that, in respect to roads which a town is bound to keep in repair, it is required to keep them in a rea•sonably safe condition for the traveller, in view of the extent and character of its use, and that the traveller has a right to assume that the road is in such condition, and use it accordingly, — although, if he has notice of the defect, he would have no right to- act as if such defect did not exist, and carelessly expose himself to injury. But, if he has no notice of any defect, he may take it that none exists; but even then he would be bound to use ordinary care to guard against unexpected defects, — that is, the care that persons of ordinary prudence and care are accustomed to use in such cases. The jury were also told that, if the want of ordinary care and prudence of the plaintiff contributed to the injury, he cordd not recover. By way of illustration, the court tol'd the jury that if a defect in a carriage contributed to an injury to a traveller, which happened by a' want of repairs of a highway, the town would not be excused because of such defect in the carriage if it was not known to the traveller, and he was in no fault* for not knowing it; and, also, that whether the plaintiff was in fault, or not using due care, 'the jury would determine it as they would whether a horse used by a passenger, and whose fright contributed to an injury, was or was not a reasonably safe horse to use. If he was, and the fright was purely accidental, for which the traveller was not in fault, and the injury was caused by the bad condition of the road, the town would be liable. To these instructions the defendants excepted.</p> <p>The defendants requested the court to charge the jury that a bridge twenty-six and a half feet long, sixteen feet wide, and eight feet high, with no obstruction thereon, having a rail on one side only, is suitable for a single person, exercising due care, to pass across, on foot, in the daytime. The court declined to charge the jury in those terms, but did instruct them that such a bridge as was described would seem, under ordinary circumstances, with nothing on the bridge to impede such foot passenger having possession of his eyesight, to be safe enough ; but still, it was for them to say whether it was reasonably safe for the travel upon it, and if not, whether plaintiff, without fault on his part, was injured by reason of such defect. They were also told that it was not enough that a road or bridge be reasonably safe for travellers at favorable times and under favorable circumstances, but they must be reasonably safe in case of accident happening? without fault of the traveller.</p> <p>The defendants also prayed 'the following instructions, which the court declined to give, except so far as they are embraced in the instructions above set forth:</p> <p>1. The burthen is upon the plaintiff to prove that he exercised ordinary care and prudence to prevent the injury complained of; and if the injury would not have happened had the plaintiff exercised the care and prudence which ordinary men having the sense of sight exercise under similar circumstances, then the verdict should be for the defendants.</p> <p>2. That one totally blind is required to exercise a higher degree of care and diligence to avoid injuries, while travelling alone on the public highways, than persons having the sense of sight.</p> <p>8. That it is negligence for one totally blind to travel unattended on the public highways, a mile and a half from home, where and in the manner the plaintiff did.</p> <p>4. That want of due care is negligence; and due care is the highest care which men of ordinary prudence would exercise in the same situation.</p> <p>5. That there is no competent evidence to prove that the plaintiff exercised ordinary care to avoid the accident which he says caused the injury of which he complains.</p> <p>The questions of law arising on this case were reserved for the whole court.</p> <p>The defendants maintain,—</p> <p>1. That towns are only required' to keep highways reasonably safe for persons having such use of the senses common to all men as will enable them to observe and avoid manifest defects in the daytime. One having the sense of sight, and failing to use it, and thereby receiving an injury, would be held wanting in ordinary care ; and he is equally wanting in ordinary care who, without sight, precipitates himself upon an obstruction which the sense of sight would have enabled him to avoid. Farnum v. Concord, 2 N. H. 392 ; Palmer v. Andover, 2 Gusli. 600 ; Butterfield, v. Forrester, 11 East 60 ; Solly v. Boston Cas Light Company, 8 Gray 123 ; Butterfield v. W. B. A!., 10 Allen 532; Smith v. Smith, 2 Pick. 621; Howard v. North Bridgewater, 16 Pick. 189.</p> <p>2. That totally blind men are required to exercise a higher degree of diligence to avoid injuries than those having the sense of sight: that is, the sense of sight wanting, other senses must be employed with more care than is required of those possessed of all the senses, otherwise the care and diligence of ordinary men would not be exercised. Tucker v. Henniker, 41 N. H. 317 ; Butterfield v. W. B. B., 10 Allen 532.</p> <p>3. That there is in this case a total want of evidence of due care. The facts are not in dispute. The bridge was sixteen feet wide, unobstructed, wanting a rail on one side, and the plaintiff walked off in the 'daytime. He exercised no sense, and, of course, no care, to prevent the accident. Duo care, the facts not disputed, is a question of law. Butterfield v. W. B. B., supra; Fox v. Sackett, 10 Allen 535; Wright v. M. M. B. B., 4 Allen 283; Callahan v. Bean, 9 Allen 401; Lane v. Crombie, 12 Pick. 177.</p> <p>4. Ordinary care is the highest care that men of ordinary prudence would exercise in the same situation, and that is defined to be such care as men of ordinary capacity would exercise. How can one be said to exercise ordinary care, who, wanting the sense of sight, conducts himself as those who have it ? Shrewsbury v. Smith, 12 Cush. 177.</p> <p>5. The case put by the court by way of illustration was calculated to mislead the jury. It was, in fact, telling the jury that the plaintiff was in no fault in not knowing a rail was wanting because he could not see, and so no care was required on his part.</p> <p>I. The first proposition of the defendants would preclude the plaintiff from his action, because he was blind, and might have avoided injury if lie had been able to see. But this is not the true rule, and the charge of the Chief Justice upon this point was sufficiently favorable to the defendants. Persons who have encountered in the darkness of night defects in a highway, with which they were familiar and which they might have easily avoided in the daytime, have often been Iiolden entitled to recover. Shearman & Redfield on Negligence, sec. 414, and note ; Whittaker v. West Boylston, 97 Mass. 273; Woodman v. Nottingham, 49 N. H. 387, 388 ; Witherley v. Regent’s Canal Co., 12 O. B. (JN. S.) 2.</p> <p>Indeed, it has been repeatedly holden that persons blind, or of defective vision, may still be entitled to recover for injuries received by defective highways. Shearman & Redfield on Negligence, sec. 413; Davenport v. Ruckman, 37 N. Y. 568 ; S. O. 10 Bos. 20.</p> <p>II. We deny that a blind man is required to exercise any higher degree of diligence to avoid injuries than persons who can see. It may be true that blind men, travelling upon the highways, are.bound to use their remaining senses more carefully than seeing men would need to do. This only requires of them ordinary care — such care as men ordinarily use for their own safety. It would be absurd to require of all persons one ordinary degree or standard of care, to be exercised in the same manner and by the same senses. Highways are intended for the use of all persons, — women and children, persons of weak minds or defective senses, persons preoccupied by business, affliction, curiosity, and the like : all these have the same necessity as others to use the highways, and roads must be made reasonably safe for their accommodation, they using, on the whole, ordinary Care. We think they are bound to use only such care as they are capable of. A different rule would substantially exclude these classes of persons from passing. Shearman & Redfield on Negligence, secs. 48, 49 ; Lovett v. Salem So. Danvers R. R., 9 Allen 557-559 ; Robinson v. Cone, 22 Yt. 313; Oakland R. Co. v. Fielding, 48 Pa. St. 320; Gardner v. Grace, 1 Post. & Pin. 359. But it is not necessary here to settle that question, for the charge to the jury was, that the plaintiff must appear to have used ordinary care. Tucker v. Hennilcer, 41.N. H. 318. It may be imprudent or negligent for some persons, in consequence of natural defects, to go upon the highway at all, or to go unattended. So it would be negligent for a person to drive upon the highway with an insufficient carriage or an unruly horse — Clark v. Barrington, 41 N. H. 44 ; — and this is precisely the illustration used by the court. Whether the plaintiff was properly upon the highway was left to the jury.</p> <p>III. The questions, whether the plaintiff was a fit man to travel alone in the highway, and whether he in fact used proper care, were for the jury, — there being a dispute about the facts and evidence on both sides to be weighed. Palmer v. Portsmouth, 43 N. H. 265; Carleton v. Bath, 22 N. EL 563; Wheelock v. Boston Albany B. B., 105 Mass. 203; Stapley v. London, B., $ S. <7. B., L. R». 1 Exchq. 21; JErnst v. Hudson Biver B. B., 35 N. Y. 9 ; Catawissa B. Co. v. Armstrong, 52 Pa. St. 282; Walker v. Croodman, 21 Ala. (N S.) 647; Shearman & Redfield on Negligence, secs. 11, 219, -and cases there cited. The capacity of the plaintiff, as well as the care he used, was much debated at the trial. . Ele was shown to be able to chop wood, fell trees, mow, reap, thresh grain, plant, hoe corn, dig potatoes, &c.3 so well, that he was £‘ a good man to hire and it appeared that he was accustomed to travel the roads on foot; that he recognized the approach of travellers, &c. It was even contended by the defendants that he was not blind. Upon this point the case'might be much more full; and the plaintiff will move to amend, if necessary, by adding an abstract of the evidence, including the facts above stated. And the care he did use was likewise a matter of controversy. It appeared that he had often crossed the bridge alone before the accident, and when he crossed it he always felt his way along with his cane very carefully, and sometimes ran against the railing; and at the time of the accident he was crossing it in the daytime, ££ feeling his way along as he always did,” and the first he knew he fell off.</p> <p>How much care this indicates, and whether he used all that could be reasonably required of him under all the circumstances, is necessarily a question for the jury. There was always a railing on the bridge before.he lost his sight, and whenever he had crossed it before the accident; and he had a right to assume that there was a railing then, at the time of the accident; and if there had been, he would have passed over safely, as he had always done before. It would seem that he exercised all the care that he was capable of, or that could be reasonably required of-him. It would be unreasonable to require him to take some one with him every time he had occasion to travel upon the highways, or to inquire and ascertain whether any dangerous places had been made in the highways or bridges since he last travelled over them ; he had a right to presume that the town had done its duty in that respect, and had kept the highways and bridges in a reasonably safe condition for him and all others who had occasion to travel upon them. It cannot be imputed to him as negligence, or want of ordinary care, that he failed to take some one with him, or to make such inquiries on such occasions. Whether it was or not, it was properly left to the jury to decide from all the circumstances. The plaintiff was cross-examined upon this point at great length; and there was conflicting testimony as to the structure of the bridge, the place where he fell off, the impression made upon the earth by his fall, the mud upon his person, &c. Upon this point we will move to make the testimony more full if necessary. ££ The blind,” says Hunt, C. J., in Davenport v. Bushman, “ have means of protection” and ££ sources of knowledge of which all are not aware.” It is impossible to aver that the total amount of care used by the plaintiff in travelling along the highway, aided by his quickened sense of feeling and hearing, was not equal to the care that men in general ordinarily use,---for persons who see do not always perceive ; their attention may be diverted and their sight may be turned from the danger they are approaching, and yet they may be guilty of no negligence which will prevent their recovering for injuries like that which the plaintiff suffers. The plaintiff certainly used more care than ordinary men could use in the night, and it is immaterial whether the accident happened for want of light or want of sight. It is wholly the fault of the town in either case.</p>

Assumpsit, by Ichabod Pearl against Samuel D. Whitehouse, for rent of a tenement occupied by the defendant after January 1, 1869, for which the jury found due to the plaintiff the sum of $43.50. The only questions of law arise upon the defendant’s set-off. The defendant in his set-off claimed to be allowed for usurious interest paid by him to the plaintiff; but the jury found for the plaintiff on that point.

Case, by the town of Gilford against the Winnipiseogee Lake Cotton and Woolen Manufacturing Company, for flowing land on the shore of Lake Winnipiseogee, by means of a dam maintained at Lake Village, across the Winnipiseogee river, the outlet of the lake. The writ was dated August 7, 1866, and the plaintiffs claimed damages for flowage during the six years prior to that date.

Appeal, by Benaiah P. Burleigh, and his wife, Mary Burleigh, against David C. Clough, executor of the last will of Hannah Hersey, from the decree of the judge of probate for the county of Belknap.

Assumpsit, by Timothy Haynes against Richard M. Ordway, to recover for the plaintiff’s attendance, as a physician, and for medicine furnished during the defendant’s illness, beginning and ending Some time prior to the date of this writ, Ordway brought case against Haynes for malpractice in that illness, and recovered judgment. Haynes reviewed. Upon review, a verdict was returned for Ordway, which he has moved to set aside. This motion is now pending.

In Equity. The bill, by E. G. & E. Wallace against Charles E. Robinson & Cyrus R. Robinson, was filed in 1872, in vacation, and a trus-. tee writ issued upon the application of the plaintiffs. The bill alleged the formation and dissolution of a partnership between the parties, and prayed for an accounting, and a decree for the payment of any sums which, upon accounting, should appear to be due to the plaintiffs. No service was made upon Charles E. Robinson.

Trespass, by Leroy Plummer against Nathan M. Currier and Orren M. Currier, for taking and carrying away twelve tons of hay, one hundred bushels of corn, one hundred and twenty bushels of potatoes, a quantity of wheat and straw, a quantity of oats and straw, seventy-five bushels of apples, some beans and pumpkins, three colts, and one cow.

<p>In 1864 a school district was indebted to the petitioners. In 1866 it was united with other districts, and ceased to hold district meetings. In 1870 the petitioners recovered judgment upon their claim, counsel having appeared for the district. In 1872 a voter in the original district petitioned the selectmen to fill vacancies in the district offices, which they refused to do. Held, that the judgment must be regarded as valid, and as establishing the fact that the district was capable of being sued, and that a mandamus must issue commanding the selectmen to fill said vacancies.</p>

<p>In assumpsit for the price of goods sold, when the defendant pleads discharge in bankruptcy, the plaintiff is not estopped by the form of his action to reply that the debt was created by the fraud of the defendant-</p> <p>A debt is created by fraud, when one, intending not to pay for goods, induces their owner to sell them to him on credit, by fraudulently representing or causing the owner to believe he intends to pay for them, or by fraudulently concealing the intent not to pay.</p>

Trover, by Justin Spear against Charles H. ITill, for one three-quarter pipe of gin, ten kegs and contents, one barrel of ale, sixteen bottles of wine, one hundred cigars, five barrels of liquor, and one keg of tomato ketchup.

Case, by Augustus Grimes against the town of Keene, to recover damages for ah injury to the plaintiff’s carriage, alleged to have been occasioned by a defect in a highway called Church street, in Keene, March 18,1871. On the morning of that day, Daniel H. Holbrook, superintendent of the Keene water-works, with two assistants, went to a point iii said street, where it crosses Beaver brook, to search for a leak in the water-pipe supposed to exist near that place.

The parties, Mary E. Spaulding, apt., against the estate of Erastus Spaulding, agreed to submit this case to the decision of the court upon the following statement of facts : The petitioner, Mary E. Spaulding, is the widow of said Erastus Spaulding, late of Keene, in said county, deceased, intestate, who died on March 20, 1868, leaving two children only, both over twenty-one years of age, and a dwelling-house, and other real and personal estate, the personal property being…

This action was brought by Sylvester J. Tidd and wife against Carlos Quinn, and was trespass quare clausum fregit, and for removing divers timber’s and boards from a barn thereon, and other injuries to it. The locus in quo is in Keene. The cause was tried on the general issue by the court by the agreement of the parties.

<p>Under the provisions of chapter 106, General Statutes, upon the death of either partner, the copartnership affairs may be fully adjusted and settled in the probate court, either by the surviving partner, or the representative of the deceased partner, or by arbitration. But if not thus settled, they may be adjusted in a court of equity the same as before such statute was enacted.</p> <p>Where, upon the death of one partner, his administrator has one half of the partnership property appraised as belonging to his estate, and disposes of the same knowing that there are company debts outstanding, such administrator will be charged with the whole amount of such property as against creditors of the firm, and with his just proportion of the company debts, not exceeding the whole amount of such property, as against the other member of the firm, before any of such property can be taken to pay the private debts of the deceased partner.</p> <p>In such case a creditor of the partnership may prove his debt against the estate of the deceased partner, or he may collect it of the surviving partner, and such claim will not be barred, except by'the general statute of limitations.</p>

Trover, by Horatio G. Pickett against Wm. B. Bullock for a cow. About April, 1870, one Eliza Norcross, being the owner of the cow, sold it to the plaintiff at the price of $40, upon the express condition that the.animal was to remain her property till paid for.

Assumpsit, by Lucius Rixford and others against J. Gregory Smith and others, the defendants, as managers of the Yt. Central and Yt. & Canada railroads, and as common carriers.

Writ of Entry, by the Cheshire Provident Institution for Savings against Abel A. Stone, on mortgages from Gladden and wife. Plea, mil disseizin, as to three undivided fourth parts of the premises. Trial by the court. It appeared that the land was originally the property of Mrs. Harriet K. -Gladden, who, with her husband, mortgaged it to the plaintiffs January 8, 1870, and again, January 29, 1870. These mortgages were duly recorded on the days of their respective dates.

Debt, brought by Aim Cummings against Michael Riley, under section 8, chapter 105, Gen. Stats., to recover for an injury to the person qf the plaintiff, occasioned by the bite of a dog alleged to be owned and kept by the defendant.

Case, by Charles R. Hardy against the town of Keene. The second count in the declaration is as follows: “ And in a further plea of trespass on the case, for that on July 1, A. D. 1870, at said Keene, there was, and for a long time had been and still is, another certain public and common highway leading from Washington street, so called, in said Keene, to and past Woodland cemetery, so called, in said Keene, and said highway being known by the name of Beaver street; and the…

<p>The construction of a written contract is for the court; — therefore, when the instrument contains no words requiring interpretation, it is error to leave it to the jury to say what the parties intended as to the scope and effect of their contract at the time of its execution.</p> <p>The defendant subscribed for shares in the M. Railroad, — a corporation then existing in this State, — upon a book which contained the condition that the subscribers should not become liable for the payment of their subscriptions until 2,000 shares of said stock should be taken in cash or its equivalent. Afterwards the M. Railroad was chartered in Massachusetts, with power to unite with the M. Railroad in this State; and the town of W. in Massachusetts was empowered to subscribe for a certain amount of stock in the Massachusetts corporation, which they did. Afterwards a union was formed between the fwo corporations, thus forming one line from P. in New Hampshire to W. in Massachusetts; and they have since been operated as one. Without counting in the subscriptions of the town of W., 2,000 shares of stock in the M. Railroad were not taken.</p> <p>Held, that, inasmuch as the Massachusetts corporation was not in existence at the time of the subscription, there was no latent ambiguity in the contract as to what was meant by the M. Railroad, and parol evidence was therefore not admissible to show that the parties understood and intended by it the united enterprise of a railroad from P. to W.: hence, that the condition upon which the subscription was made had not been performed, and the defendant was not liable to pay for the shares.</p>

<p>In Equity. Case agreed. The plaintiffs (the railroad company, and S. W. Hale, E. E. Lane, and others, stockholders), as a corporation, and as individuals, claim the right to redeem the road by paying up the bonds of the company, secured by mortgages on the road, one of which was on that part of the road in this State, and the other on that part in Vermont. Tlid defendant, Elliot, denies the existence of any such right, by reason of certain acts done by those interested in the premises, hereafter stated, and the following laws passed by the legislature:</p> <p>AN ACT for. tire relief of the stockholders and creditors of the Ashuelot Railroad Company.</p> <p> Be it enacted bj the Senate and Souse of Representatives in General Court convened: </p> <p>Section 1. That the mortgage made by the Ashuelot Railroad Company, on the first day of January, A. D. 1851, of their railroad, granting and conveying the same, with its franchise and rights thereto belonging, as established by the laws of this State, to John Henry Elliot, in this State, in trust to pay said company’s bonds to the amount of two hundred thousand dollars,’ dated on or before said first of January, 1851, and payable ton years therefrom, with interest, and also the other mortgage dated the second of January, A. D. 1855, made by said company, granting and conveying their railroad and estate lying in Vernon, in the State of Vermont, to said Elliot, in trust for the purpose also as aforesaid, be, and said mortgages are, hereby confirmed, and shall be held valid and binding upon the parties thereto, according to their tenor; and all the votes and acts of said company, in relation to said mortgages, and in giving possession of said mortgaged property to the trustee aforesaid, for condition broken, to the use and benefit of the owners of the bonds aforesaid, be, and are hereby, ratified and confirmed, and shall be held valid and binding upon all parties thereto.</p> <p>Sec. 2. Be it further .enacted, That in case said mortgages be not paid or discharged within one year from the passage of this act, William Haile and all other owners of the bonds aforesaid, or their successors, are hereby made the perpetual assigns and substitutes of said Ashuelot Railroad Company, with power to do any and all things as fully and completely as said company could have done before its insolvency, it being the intent and meaning of this act to transfer the corporate powers and duties of said company from the stockholders to the creditors of the same, in perfection and satisfaction of the mortgages above described and said company’s votes in relation thereto.</p> <p>And it is also provided, that the bonds aforesaid shall hereafter be held and accounted as the sole paid up shares of the Ashuelot Railroad Company, and shall constitute its entire capital, and the owners of the same shall be entitled to share certificates respectively upon the surrender of their bonds aforesaid, subject to the laws of this State.</p> <p>Sec. 3. Be it further enacted, That this act take effect on and after its passage.</p> <p>Approved July 4, 1861.</p> <p>AN ACT for the relief of the bondholder’s of the Ashuelot Railroad Company, and to facilitate the settlement of the trust for their benefit.</p> <p> Be it enacted by the Senate and Souse of ^Representatives in General Court convened: </p> <p>Section 1. That John Henry Elliot, the trustee for the bondholders, to whom the railroad, franchises, lands, buildings, and estate, with the privileges and appurtenances thereunto belonging, in this State and the State of Vermont, of the Ashuelot Railroad Company, were mortgaged by said corporation, by its two deeds of January 1,1851, and January 2, 1855,. may sell the same at public auction, giving previous notice thereof by publication at least four weeks successively in some newspaper published at Keene, and upon such sale and conveyance by said trustee accordingly, the railroad, property, and estate of said corporation, with all the corporate rights, franchises, powers, and privileges heretofore conferred on said corporation, shall become and be invested in the purchaser : Provided, however, that no sale shall be made at a price less than the full amount now due on the outstanding bonds of said corporation secured by said mortgages. And the Cheshire Railroad Company is hereby authorized, if it shall think proper, to become the purchaser, at said sale, and to make and issue such notes, bonds, or other obligations as it may think proper for the purpose of such purchase.</p> <p>Sec. 2. The proceeds of said sale, and the funds and other property now held by said trustee in trust for the holders of the bonds aforesaid, after payment of the proper expenses of the trust and compensation of said trustee, shall bo by said trustee accounted for and paid over to the holders of the bonds secured by said mortgages, according to their respective interests therein.</p> <p>Sec. 3. So much of the act entitled “ An act for the relief of the stockholders and creditors of the Ashuelot Railroad Company,” approved July 4, 1861, as is inconsistent with the provisions of this act, is hereby repealed.</p> <p>Sec. 4. This act shall take effect on its passage.</p> <p>Approved July 6, 1866.</p> <p>The railroad company was incorporated in 1846. In 1850 it had expended about $500,000 in constructing the road, about $200,000 of which was received on about 2,000 shares of the stock, at $100 par value. On that day the company authorized its president and three of its directors to mortgage said road, its franchises, lands, and privileges, to said Elliot, then its clerk and treasurer, in trust to secure the payment of its bonds to an amount not exceeding $200,000 ; and on January 1, 1851, they duly executed the mortgage of its franchises, lands, buildings, and appurtenances to said Elliot, clerk of said company, “in trust for the purposes and upon the conditions following, to wit, — “ If the said Ashuelot Railroad Company, their successors or assigns, shall well and truly pay, or cause to be paid, their bonds to the amount of $200,000, and the interest thereon, which bonds shall bear date on or before January'1, A. D. 1851, and made payable in ten years from January 1, with six per cent, interest to be paid semiannually, then this obligation to be void and of no effect. And if said company shall refuse or neglect to pay the principal and interest •of said bonds, or any part thereof, according to their terms, then, and in that case, and in no other, the said mortgagees, or any individual or individuals holding said bonds, and being the owners thereof, may enter upon said described property hereby conveyed, and take possession of the same for the purpose of foreclosing said mortgage, reserving, however, to the mortgagors all the rights and privileges of redeeming said property provided by the laws of the State of New Hampshire.” On said January 1, 1851, the company issued their bonds for $200,000, with semi-annual interest coupons, the bonds payable in ten years. Prior to this date the company had leased the road to the Connecticut River Railroad for the term of ten years from January 1, 1851, at a rent of $30,000 per year, which was paid to said Elliot, treasurer, a portiop of which was appropriated to paying the interest on the bonds and balance of floating debt; and a balance of about $66,000 was in his hands in 1860. The bonds were not paid at maturity nor since, unless it.results from facts hereinafter stated by operation of law.</p> <p>At the annual meeting of .the corporation in 1860, liolden by adjournment on October 9, it was voted, among other things, “ to buy up the shares of the original stock of the company at a rate that shall absorb the disposable surplus of the company, and do the same, if possible, before the expiration of November coming, and in such manner as they, the directors, shall deem for the interest of those concerned. At an adjourned meeting, December 11, 1860, it was “ voted that'the directors be hereby authorized to issue preferred stock in payment of the company’s bonds when due, said stock to be entitled to all the net earnings of the road, it being understood and provided at the same time that all the present issue of stock shall be redeemed at $30 per share if the same be presented for redemption before July 1,1861; ” also, ‘‘ voted that the directors are' hereby authorized to make a surrender of the company’s road to the mortgagee, if, upon the maturity of the bonds, the holders thereof, for the space of six months, shall refuse or neglect to accept or agree to accept preferred shares in payment therefor, or said directors may make such'surrender sooner than as above, if, in their opinion, it would better subserve the interest of parties concerned.” Adjourned to January 11,1861, when, upon motion, it was “ voted to authorize Mr. Fuller, the president, Mr. Elliot, the treasurer, and Mr. Hale, one of the directors, jointly to lease said railroad to the Cheshire Railroad Company. * * nine months at forty per cent, of the earnings, and thereafter until January, 1865, at $12,000 per annum; ” lessees to keep the road insured against fire and in good repair. Adjourned to February 11, when the lease to the Cheshire Railroad above referred to was properly executed. No preferred stock was ever issued. About February 11, 1861, peaceable possession of the road was given to said Elliot as .trustee, according to the company’s said vote ; and he has ever since managed it, and received its entire income, paying annually, with two or three exceptions, the net income in dividends to the bondholders. • About 1,800 of the 2,000 shares of the Ashuelot Railroad stock was bought up as herein before provided, at $30 a share. The company held an annual meeting in 1861, and chose the usual officers, who never qualified, and held no other meeting until 1872, as hereinafter stated. In 1872 the individual plaintiffs, who are the owners of more than one twentieth of. the stock of the company which had not been surrendered as aforesaid, and on which no payment of $30 a share or any other sum had been made, petitioned a justice of the peace under the statute, who called a meeting of the stockholders for the choice of officers, at which the ordinary officers of such corporations were chosen and qualified. At the suggestion of the said Elliot, said laws were passed by the legislature; but no action whatever was ever taken by any of the par ties interested in the matter, or by the bondholders, by virtue or authority of said acts. The foregoing is the plaintiffs’ statement of the facts which they expect will appear, and on which they claim that the mortgages mentioned are not foreclosed.</p> <p>For the purpose of briuging this question before the full bench, the parties agree that this case may be reserved; and when this question of law is disposed of, the case is to be discharged, and the action to stand for such future proceedings as the parties shall be 'advised to take. t It is expressly agreed that neither party is to be bound by anything contained in the above statements, and that neither party waives any exception or objection which would have been open had this case not been made.</p> <p>I. The acts of the State of New Hampshire, of July 4, 1861, and July 6, 1866, have at least this effect: they give the sanction of the legislature to the mortgages, to the entry for condition broken, and to the foreclosing of the mortgage. Section second of the act of 1861 substantially enacts that the mortgage shall be foreclosed in one year from its passage, and also makes provision for a new corporation to take the place of the old one. The act of 1866 goes upon the ground that the mortgage is foreclosed, and, in providing for the sale, provides that all the proceeds and all the property of every kind held in trust by the trustee shall be paid over to the bondholders, thus treating them as the absolute owners, and entirely ignoring any right of the corporation to redeem. In so far as the franchise to be a corporation is concerned, and which it is said cannot be a subject of sale and transfer except by some positive provision of law, provision is made in the first of these acts for its transfer to the bondholders, and by the second for its transfer to the purchaser, whether the Cheshire Railroad or otherwise. So far, therefore, as the authority of the State is concerned, the mortgage and its complete foreclosure are fully recognized and legalized by these acts. Hall v. Sullivan Railway cited 2 Redfield on Railways 465, ed. of 1869.</p> <p>II. It is not, perhaps, entirely easy to determine satisfactorily the nature of these mortgages. The cases of Farmers’ Loan Trust Co. v. Hendrickson, 25 Barb. 484, Palmer v. Forbes, 23 111. 300, Hunt v. Bullock, id. 320, Pennock v. Coe, 23 Howard (U. S.) 117, cited in 2 Redfield on Railways 481, 483, seem to hold that the rolling stock, and all the other personal property necessary for operating the road, are to be considered as fixtures, and that the mortgage in such a case is to be considered as the mortgage of real estate. If the court should take this view of the mortgage in question, and hold that the New Hampshire mortgage under consideration was a conveyance of lands within the terms of General Statutes, chapter 122, section 1, then the question would be, whether, according to the provisions of that statute, this mortgage has been foreclosed. We take this position, viz., that, under the second mode provided in section 14 of the same chapter, the mortgage is foreclosed. The mortgagee has been in peaceable possession for condition broken for at least twelve years. This possession was yielded to the trustee in pursuance of a vote of the corporation, and lias all the publicity of actual possession during that time, and also the recognition by the statutes printed with the case. We think that, under the circumstances of this case, there was no occasion for the publication mentioned in that statute : such publication would have’ been merely nugatory, and without any possible object or value. We think the authorities show that in all such cases actual notice is sufficient as against the parties to be affected'by it, and the railroad corporation and its stockholders cannot object on account of want of notice by publication.</p> <p>The provision concerning publication of notice was introduced into our statutes in the “ act relating to the foreclosure of mortgages,” passed July 4, 1834, and provided that the mortgage should not be foreclosed against any person but the mortgagor and his heirs, unless the notice was published. Pamphlet Laws, 1834, page 151. The provision was for the protection of innocent purchasers without notice, creditors, &c., and the evil to be remedied by the statute was the injury to such persons who otherwise might be defrauded. The subsequent statutes (Rev. Stats. 247, and Gen. Stats. 254) appear to be mere revisions of the law of 1834, and do not substantially change it. And we contend further, that in any view, the familiar principles, in regard to the substitution of actual notice for constructive notice by registry or publication, would govern the construction of these statutes.</p> <p>III. In so far as this mortgage is not within the statute in regard to mortgages of lands, we understand that by the laws of New Hampshire the legal estate is absolute in the mortgagee after condition broken, and any redemption must depend on the chancery jurisdiction of the supreme judicial court. In this view our position is, that, under all the circumstances, the claim to open this foreclosure is stale, and barred by the lapse of time, and this notwithstanding the ordinary practice of allowing twenty years in regard to simple mortgages of real estate. Story Eq. Jur., sec. 1520. In that section this language occurs : “ But equity will often treat a lapse of a less period as a presumptive bar, on the ground of discouraging stale claims or gross laches, or unexplained acquiescence in the assertion of an adverse right.” Wendell v. N. JEL. Bank, 9 N. H. 404.</p> <p>We have endeavored to conduct this discussion in view of the facts stated by the plaintiffs in the case, although we do by no means think they can be made out.</p> <p>It may be added, that an entry after condition broken is prima facie to foreclose, and that all the facts stated appear to us to confirm this presumption.</p> <p>The mortgage is not foreclosed.</p> <p>I. It is not foreclosed under the general laws of the State. Elliot lias not entered under process, nor taken peaceable possession, and advertised, as is required, to foreclose a mortgage of real estate ; nor lias he pursued the course prescribed for the foreclosure of a mortgage of personal estate. In cases where the provisions of the statute prescribe the mode of foreclosure, those provisions govern the foreclosure. In other cases, the supreme court have general equity jurisdiction to foreclose.</p> <p>II. .The mortgage is not foreclosed by or under the private act of July 4, 1861.</p> <p>1. That act undertakes to foreclose the mortgage by the mere lapse of one year from its passage, without notice of any kind, without a sale, without requiring possession of the road to be taken and held, and without any bill or other legal process. It is not a legislative, but a judicial act. It is, in substance and effect, a judicial decree, that the mortgage should be foreclosed if the mortgage debt were not paid in one year: and this is exactly the decree that a court of equity would have made bn a bill to foreclose the mortgage ; for a decree of foreclosure in equity follows the statute in giving one year to redeem, unless there is some reason to vary the general rule. The act is in this respect a clear and flagrant usurpation of the legislative upon the judicial department of the government; is beyond the scope of legislative authority, and in violation of the bill of rights. Bill of Rights, art. 38.</p> <p>For this reason,-^-because the act undertakes to decide a particular cause by a new rule not known to the general law of the State, instead of leaving the parties to settle their rights in regular proceedings, according to the general law, — the act is void, and no right can be derived under it. It is not the case where a new remedy is given by a general law. No remedy is provided by which the parties can show and defend their respective rights. It is not a remedy at all, but a decision and final disposition of that particular cause. Neither of the parties can resort to any provision of the act for any hearing or inquiry that could give any remedy under the act. It was a decision, in that individual case, that there was a valid mortgage ; that there was a mortgage debt, and a right to redeem ; and it was a decree declaring that the mortgage should be foreclosed if the debt were not paid in one year, precisely as if the legislature were a court inquiring into the facts of the case, deciding the legal rights of the parties, and giving a final judgment establishing their rights, and decreeing the manner in which they should be enforced. The authorities are numerous, and, so far as we have seen, unanimous, that, under a constitution like ours, such an act is void, because it is a judicial, not a legislative act. Merrill v. Sherburne, 1 N. H. 199-203 ; Howard v. Bugbee, 24 Howard 461; Houtsong v. Wolf, 35 Mo. 174 ; Bodge v. Woolsey, 18 Howard 331; G-oenen v. Schroeder, 8 Minn. 387 ; Benny v. Mattoon, 2 Allen 361; Bruffett v. The JRailroad, c., 25 111. 353 ; Cornell v. Hichens, 11 Wis. 353; Robinson v. Magee, 9 Cal. 81; Bikeman v. Bikeman, 11 Paige 484 ; The People v. Hays and the City of San Francisco, 4 Cal. 127 ; Robinson v. Howe, 13 Wis. 341; Pearce v. Patton, 7 B. Monroe 162 ; Dubois y. McLean, 4 McLean 486 ; DeChastellux v. Fairchild, 15 Pa. St. 18; Bryson v. Bryson, 44 Mo. 232 ; Orion v. Noonan, 23 Wis. 102; Qonway v. Cable, 37 111. 82; Fletcher v. The Rutland Ra-ilroad, 39 Yormont 633. There have been some decisions, of doubtful authority, that the legislature may confirm an equitable title by a private act removing technical and formal objections to the equitable title. But this act, instead of confirming an equitable title, takes away an equitable right, — that is to say, the right in equity of the mortgagors to redeem, according to the law of the State.</p> <p>2. The act impairs the obligation of the contract between the parties to the mortgage.</p> <p>Under the mortgage, the railroad had the right to redeem by paying the mortgage debt. This right to redeem would remain until it was barred, according to the terms of the mortgage and the law of the land. It was by the contract in the mortgage that the mortgagors had the right to redeem. The right would belong to them as part of the contract implied in the mortgage, though it had not been secured by the express terms of the mortgage. But the mortgage expressly reserves “ to the mortgagors all the rights and privileges of redeeming said property provided by the laws of the State of New Hampshire.” By the laws of the State, nothing less can be meant than the general laws of the State; not a single private act, taking away the right itself reserved of redeeming according to the laws provided for redeeming mortgages by 'the laws of the State. Bronson v. Kinzie, 1 Howard 311; McCracken v. Hayward, 2 Howard 608 ; Woodruff v. Trapnall, 10 Howard 190 ; Curran v. Arkansas, 15 Howard 304 ; Bruffett v. The Railroad, 25 111. 353 ; Cornell v. Hichens, 11 Wis. 353 ; Robinson v. MaGee, 9 Cal. 81.</p> <p>3. If the legislature had the right to repeal, alter, and amend the act incorporating the railroad, they could not, by the exercise of the right, impair the obligation of a contract, made by or with the road, before the repeal, alteration, or amendment. This contract, made by and with the road, was a valid contract, made under the authority of the State; and the State had no more authority to impair it than a contract made directly by the State herself. The authorities on this point are entirely decisive. Bruffett v. The Railroad, 25 111. 353; St. Louis v. Russell, 9 Mo. 507; Smith v. Morse, 2 Cal. 524; Benson v. The Mayor of New York, 10 Barb. 223 ; Slack v. The Railroad, 13 B. Monroe 1; Dodge v. Woolsey, 18 Howard 331; Bank v. Debolt, 18 Howard 380; Bank v. Thomas, 18 Howard 384; Bank v. Shelly, 1 Black 436 ; Van Hoffman v. Quincy, 4 Wallace 535; Hawthorne v. Calef, 2 Wallace 10 ; Conant v. Van Schaick, 24 Barb. 87. Here, however, was no repeal, alteration, or amendment of the charter. The act had no more effect on the charter than a judicial decree of foreclosure would have had. The charter, and all the provisions .of it, remained exactly as before: no new power was given, nor any power taken away or changed.</p> <p>4. The act is also in violation of the article in the bill of rights. which declares that “ no subject shall be deprived of life, liberty, or estate, but by the judgment of his peers and the law of the land.” Bill of Rights, art. 18.</p> <p>This provision is of the same meaning as the like phmsc i:i Magna Oharta. Wilson v. Mayo, 1 N. H. 55. The right to property cannot be taken away but by some process or proceeding warranted by law, — that is to say, by the general law of the laud, and not by a direct interference in the particular case contrary to the law of the land. A private, special act, like this of July 4, 1861, is not the law of the lend, for a law of the land must be a law of general application to all cases of the same kind throughout the land. “ It is by the law in its due and orderly administration through appropriate tribunals, and not by force of an act of legislation only, that the subject can be deprived of his property, in the true sense of that clause of the constitution which secures to him the protection of “ the law of the land.” Bigulow, O. J., Benny v. Mattoon, 2 Allen 382, — citing 2 Kent’s Com. 13 ; Sedgwick on St. & Con. Law 538 ; Taylor v. Porter, 4 Hill (N. Y.) 140 ; Wynehamer v. The People, 13 N. Y. 378 ; Hoke v. Henderson, 4 T)cv. (N. C.) 15; Sohier v. The Massachusetts Greneral Hospital, 3 Cush. 483-493. Bronson, J., speaking of the same provision in the constitution of New York, says, — “ The words 5 by the law of the land,’ as here used, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the constitution into mere nonsense. The people would be made to say to the two houses, You shall be vested with the legislative power of the State; but no one shall be disfranchised, or deprived of any of the rights of a citizen, unless you pass a statute for that purpose.” Taylor v. Porter, 4 Hill 145.</p> <p>III. Elliot, having beeii treasurer, clerk, and general manager of the railroad, as he states in his answer, and also trustee of the mortgage for the bondholders, can make no profit from dealing with the funds and property which lie held and managed in a fiduciary character; and, even if the mortgage is foreclosed, he must account for all the profits he has made from dealing in those funds; and the funds may be traced into any investments that he has made of them. If, under color of this private act, passed without notice at his suggestion, ho can retain the wealth he has acquired in dealing with this property and these funds thus held by him in trust, this will be another added to the numerous instances in this country in which those who have worked themselves into the management of railroads have contrived, with the aid of acts lobbied through the legislature, to enrich themselves and impoverish tlio stockholders.</p> <p>Besides other facts of more or less importance, the case presents the following, — all or nearly all of which are matters of record/and indisputable :</p> <p>1. That in 1850, mortgages of the Ashuelot Railroad Company, their rights and franchises, were made and executed to the defendant, Elliot, then clerk and treasurer of the company, as trustee, to secure the company’s bonds, to be dated January 1,1851, payable in ten years, not exceeding $200,000, to raise means to complete the road, — the condition of which, among 'other things, provided that any bond-owner of a bond, unredeemed at its maturity, might take possession of the road for condition broken, for the purpose of foreclosing the mortgages ; and also further securing all the rights and privileges of redeeming the property provided by the laws of the State to the stockholders. The first of these precautionary and unusual provisions in the condition of the mortgages was evidently for the benefit of the 'bond-owners, and the last one for the security of the stockholders.</p> <p>2. That in 1860 the company had accumulated a fund of about $66,000, which they had on hand at their disposal.</p> <p>3. That the company voted to “ buy up ” as many shares of the stock as should be offered before July 1, 1861, at $30 a share, with this fund, — and that they actually did buy up about 1,800 of the 2,000 shares then outstanding.</p> <p>4. That the company offered the bond-owners preferred stock of the company, to take all the net income of the road, in payment of their bonds.</p> <p>5. That if they neglected to accept such stock for six months after the bonds became due, the directors might surrender the road to the trustee, or sooner if they thought best for the interests of all parties.</p> <p>6. That a lease of the road was executed on February 11, 1861, by the president, Mr. Fuller, by the trustee, the defendant, and by Mr. Hale, who was a bond-owner, to the Cheshire Railroad Company until 1865.</p> <p>7. That the bond-owners did not accept preferred stock in satisfaction of their debts.</p> <p>8. That the defendant, Elliot, was given possession of the road about February 11, 1861, and has received the income ever since, and paid dividends to bond-owners as he has seen fit.</p> <p>From the above facts it is very evident—</p> <p>Mrst. That the bondholders did not intend or desire to take possession of the road for the purpose of foreclosing their mortgages, for, if they had, they would have proceeded according to the provisions made in the conditions of the mortgages, which authorized any bond-owner to do it under the general laws of the State for foreclosing mortgages. But they neither did any such thing, nor attempted it. Nor did the stockholders, or the trustee, Elliot, understand that the directors were to surrender the -road to the mortgagee for the purpose of foreclosing any of the stockholders’ rights to the road, but only to secure the actual possession and income of the road for the benefit- of the bondholders; for if they had so understood it, they would not have made and exe•cuted a lease of the road, two months after the vote was passed, to the Cheshire Railroad for four years longer; and, besides, Elliot would have advertised for a foreclosure as the law required.</p> <p>Second. The bondholders not only did not seek to foreclose their mortgage and thus take the road, but they did not want to become stockholders in the road in satisfaction of their bonds ; for if they had they would have accepted preferred stock which was offered them, and which secured to them all the net earnings of the road. They preferred the rights of bond and mortgage creditors of the road, to the rights, liabilities, and risks of stockholders. And the stockholders were in a position to do nothing for themselves, only to dispose of the surplus they 'had on hand. The company offered to buy up all the shares that should be offered before July 1,1861, at $30 a share. Most of the stockholders disposed of their stock in this way; and those who did not of course continued stockholders of the company, with all the rights and liabilities they ever had, and with the additional advantage of the reduction of the amount of the outstanding capital stock of the company, — if such were an advantage, — by the buying up of the stock of the company. Such seemed to be the true position and relation of all the parties to each other, leaving no room for doubt or misgivings upon the subject up to July 4, 1861, when the legislature, at the suggestion of the trustee, Elliot, who liad no personal interest in the matter, passed a private act, entitled “An act for the relief of the stockholders and creditors of the Asliuelot Railroad Company,” behind which he claims to stand, sheltered and protected by it from all responsibility to those stockholders who. did not dispose of their stock as provided for by the company. It is a private act, specially limited to this caso, asked for or wanted by no one except said Elliot. And he now claims that those stockholders, who did not see fit to take $30 a share for their stock, have been cut off and foreclosed of all their rights of property by this act. No stockholder asked for such legislation : no bondholder sought it: it was in violation of their solemn agreement contained in the conditions of the mortgages, — the very instrument by which Elliot received his authority as trustee, — securing to the stockholders “ all the rights and privileges of redeeming the property secured by the laws of the State of New Hampshire.” What, then, is the reasonable interpretation of this statute ?</p> <p>The first section confirms the validity of the mortgages, and all the votes and acts of the company in relation to said mortgages, and in giving possession of the property to the trustee for condition broken. The second section, in terms, transfers all the corporate rights and powers of the stockholders to the bondholders, — converting their bonds into stock without their consent, and burdening them with the liabilities and risks of stockholders, — and forfeits all the stockholders’ rights and property, provided the stockholders did not pay up the bonds in one year: a remarkable law, asked for by no one having legally any pecuniary interest in it, with a false and deceptive title calculated to deceive and impose upon the legislature, and containing the statement, which is contrary to fact, that possession of the road was given to the trustee “ for condition broken.” It may be a relief of both the stockholders and creditors, if depriving one of them of their entire property as is liere claimed, and by converting the rights of the other from bonds into stocks with the liabilities and risks of railroad stockholders, and without their consent or perhaps knowledge, could be fairly considered a relief. Can such a law, with this natural and obvious construction, be within the sphere of constitutional legislative action ? Can mortgage bonds against a corporation be converted into stocks of the same corporation, without the consent of the owners and by the bare act of the legislature, thereby entirely changing the character of his property, and the burdens, liabilities, and risks connected with it ? And can it also limit and deprive the stockholders of their rights of property contrary to their’ contract, contrary to the general laws of the land, and contrary to the bill of rights, which assures to every one the enjoyment of his life, liberty, and property ? Are the rights of property held by such a slight and uncertain tenure as the trustee prescribes for those whose property he manages and controls ? If this is constitutional, if this is just, if this is within the bounds of legislative action, what action of the legislature in relation to a person’s private rights and private property would not be just and constitutional ? And what guaranty has a person for the security of his private property to himself? This doctrine-would strike at the very foundation of private rights and of private property. Such is the natural interpretation of this act. It trifles with, changes, and destroys private property in special cases: it cuts off one person’s rights, converts another person’s property into a very different species of property without his asking for or consenting to it, at the bare suggestion of a third person, whose only duty is to take good care of the property and its income for the benefit-, not of one party alone, but of both parties equally. Not only have the bondholders claims upon him to be faithful in his trust in managing the property and securing its income to them, but the stockholders, — the owners of the property, — have also a claim upon him, equally imperative, that he take good care to preserve its character and value.</p> <p>Such being the character of the act, we claim that it is unreasonable, unjust, and unconstitutional and void. As a special and private act to relieve the mortgages from the provisions of the general laws relating to foreclosures of mortgages, it is void. The laws of a free country can be no respecter of persons. Cooley on Constitutional Limitations 355, 391; Lewis v. Webb, 3 Greenl. 326 ; Piequet, Appellant, 5 Pick. 65; Walley's Heirs v. Kennedy, 2 Greg. 554 ; Opinion, 4 N. H. 572 et seq.; Teft v.' Teft, 3 Mich. 67 ; Brown’s Const. Law 228; Wynehamer v. The People, 13 N. Y. 432. So it is unconstitutional and void, as taking away or impairing vested rights. Woart v. WinnieTc, 3 N. H. 473 ; Low v. Norris, 4 N. H. 16; Merrill v. Sherburne, 1 N. II. 213; LakemanY. Moore, 32 N. H. 413 ; People y: J. M. Plank Load, 9 Mich. 285 ; Van Hoffman v. Quincy, 4 Wall. 535; Hawthorne v. Galef, 2 Wall. 10; Wabash Go. v. Beers, 2 Black 448 ; Concord Bailroad v. Greely, 17 N. H. 55, 56 ; I. f H. Turnpike Hoad Go. v. Phillips, 2 Pa. 184 ; Bowman v. Middleton, 1 Bay 252 ; Opinion, 4 N. H. 573, 574.</p> <p>But if tbe act be not absolutely void, its ouly legitimate force must be in the nature of an enabling act. This railroad company was and is a public corporation, required by the general laws of the State to live and perform certain public duties. It cannot be presumed, therefore, that the legislature intended to deprive it of the necessary organization to conform to the requirements of the law. And the only reasonable construction to give to the law, therefore, is, that, if the company did not pay their bonds within the time prescribed, the bondholders might elect to convert their bonds into stock, and demand certificates thereof in discharge of tlieir bonds, and to the exclusion of any rights of the old stockholders who had not sold out and surrendered their certificates. It is not reasonable to presume that the stockholders were to bo deprived of their rights and franchises, unless the bondholders, tbe only interested parties assumed to be benefited by it by having their bonds paid by the operation, should accept that position for themselves. Nor is it reasonable or necessary to assume that the bondholders were to he deprived of their bonds, and compelled to take satisfaction thereof in the stock of the road without their own consent. It was, then, at most, an enabling act, giving authority to change the relations of tho partios, if the bondholders should elect to do it. But in this view it has had no operation, as the bondholders have never felt disposed to accept the proposed change, preferring to be bondholders to being stockholders. And this idea is in conformity with subsequent legislation, for we find, at the June session of the legislature in 1866, the same trustee procured another private act in relation to the same matter hut taking a new tack. It is very likely that there might he some interested parties in this matter, for it appears that the Cheshire Railroad Company own most of the bonds. This act authorizes said Elliot, the trustee of the bondholders, to whom the raih’oad.and all their franchises were mortgaged, to sell the same at public auction, and to pay over the proceeds to the bondholders, not to be sold for a less price than sufficient to pay the bonds in full; and the Cheshire Railroad were authorized to become purchasers. All acts inconsistent with this were repealed. Here the bondholders were recognized as such. They were not, talked about as stockholders, nor treated as such, nor to he paid as such, but as bona fide, rightful bondholders, as they were in 1861. And the provisions of this act are consistent only with the idea that the former act was regarded either as unconstitutional and void, or that it was barely an enabling act, and had failed of force because it had not been accepted and acted upon by the only party that could do it — the bond-owners.</p>

Case, by Charles Darling against the town of Westmoreland, for an injury caused by defects in a highway. Verdict for the defendants, and motion of the plaintiff for a new trial. The defects alleged by the plaintiff were, a pile of lumber by the Side of the road likely to frighten horses, and an insufficient railing of a bridge.

Assumpsit, by Sylvester Morris against Henry S. Bowen, for money-paid. Writ dated April 22,1871. Plea, the general issue. The plaintiff offered the record of a judgment, recovered in Massachusetts in 1845, by Downer, Nevens & Fish, against the present defendant. The record showed the judgment to be founded on the following note: “ $138.13.

<p>Assumpsit, by Elvira S. Wood and Enoch C. Howe, administrators of the estate of Benj. Wood, against Charles A. Wood, and Wm. H. Gray, trustee, to recover a promissory note, the action being commenced by process of foreign attachment. The trustee deposed that he had given several promissory notes, payable to the defendant or his order. Hunt, Cox, and Kilburn were allowed to come in as claimants of some of the notes, and pleaded the following pleas :</p> <p>1. “ And the said George Hunt, John O. Cox, and Wm. B. Kilburn, by leave of court here for that purpose first had and obtained, come and defend, &c., when, &c., and say, that the said Wm. H. Gray ought not to be charged as the trustee of said Charles A. Wood, because, they say, that before the service of the plaintiffs’ writ in this action upon said trustee, the three following notes, named in the said disclosure of the said supposed trustee, — viz., the note signed by the said trustee, bearing date at Lebanon in the State of New Hampshire, on December 11, A. D. 1867, for the sum of $200, payable to O. A. Wood, or order, in three years from the date thereof, with interest annually; the note signed by said trustee, dated at said Lebanon, on said December 11, 1867, for the sum of $200, payable to C. A. Wood, or order, in four years from date, with interest annually; and the note signed by said trustee, dated at said Lebanon, on said December 11, 1867, for the sum of $200, payable to C. A. Wood, or order, in five years from date, with interest annually, the interest on each of said notes having been paid and endorsed thereon to November 6,1868, — were, to wit, on October 27, A. D. 1869, the property of said Charles A. Wood and one Wheeler W. Ames, then partners, doing business under the firm name of Wood & Ames, and were, to wit, at said Lebanon, on said October 27,1869, by said Wood & Ames, in good faith assigned and transferred to said George Hunt, John O. Cox, and William B. Kilburn, partners as aforesaid, as collateral security for the payment of two certain promissory notes, duly executed by said Charles A. Wood and Wheeler W. Ames, by their said firm name, dated at said Lebanon, on said October 27, 1869, said first of which two last mentioned notes being for the sum of $152.20, payable to the order of said Wood & Ames, at the First National Bank of Lebanon, N. H., in two months from date, and the other of said last mentioned notes being for the sum of §172.10, payable to the order of said Wood & Ames, at the First National Bank at Lebanon, N. H., in three months from date, both of which last mentioned were, in good faith and for adequate consideration, duly sold, assigned, and transferred to the said George Hunt, John O. Oox, and William B. Kilburn, partners as aforesaid, by said Wood & Ames, by endorsing their firm name on the back of each of said notes ; and this they are ready to verify. Wherefore they pray judgment that said three notes first above mentioned were the property of said Wood & Ames, and were so transferred as in their plea alleged, and for'tlieir cost. By their attorney, Edmund Burke.”</p> <p>2. “ And the said George Hunt, John O. Cox, and William B. Kilburn, by leave of court here for that purpose first had and obtained, come and defend, &c., when, <fcc., and say, that the said William H. Gray ought not to be charged as trustee of said Charles A. Wood, by reason of anything contained or set forth in the said disclosure of said Gray, because, they say, that before the service of the plaintiffs’ writ in this suit upon the said trustee, three of the notes named in the said disclosure of the trustee, — viz., the note payable in three years from the date thereof, the note payable in four years from the date thereof, and the note payable in five years from the date thereof, to wit, on October 27, A. D. 1869, at Lebanon in the county of Grafton, — were the property of the said Charles A. Wood and one Wheeler W. Ames, then and there partners, doing business under the firm name of Wood & Ames, and were in good faith duly assigned and transferred by said Wood & Ames to said George Hunt, John O. Cox, and William B. Kilburn, partners as aforesaid, as collateral security for the payment of two certain other promissory notes, duly executed by said Charles A. Wood and Wheeler W. Ames, by their said firm name, said two last mentioned notes being dated at said Lebanon, on October 27, A. D. 1869, and payable to the order of said Wood & Ames, at the First National Bank of Lebanon, N. H., the first of said two last mentioned notes being for the sum of §152.20, payáble in two months after date, and the other of said two last mentioned notes being for the sum of §172.10, payable in three months after date, which said two last mentioned notes were, in good faith and for an adequate consideration, duly assigned and transferred to said George Hunt, John O. Cox, and William B. Kilburn, partners as aforesaid, by said Wood & Ames ; and this they are ready to verify. Wherefore they pray judgment that said three notes first in this plea mentioned were the property of said Wood & Ames, and were so transferred as in their plea is alleged, and for their costs. By their attorney, Edmund Burke.”</p> <p>3. “ And the said George Hunt, John O. Cox, and William B. Kilburn, by leave of court here for that purpose first had and obtained, come and defend, &c., when, &c., and say, that the said William H. Gray ought not to be charged as trustee of the said Charles A. Wood, by reason of anything contained or set forth in the said disclosure of said Gray, because, they say, that before the service of the plaintiffs’ writ in this suit upon said trustee, three of the notes mentioned in the disclosure of the said supposed trustee, — to wit, the note payable in three years from date, the note payable in four years from date, and the note payable in five years from date, — were duly assigned and transferred to said George Hunt, John O. Cox, and William B. Kilburn, partners as aforesaid, by the said Charles A. Wood, in good faith, as collateral secuzity for tlze payment of two other certain promissozy notes, duly executed by said Charles A. Wood and one Wheeler W. Ames, there,-at the date of said last mentioned notes, to wit, October 27, A. D. 1869, being partners doing business in the firm nazne of Wood & Ames, said two last mentioned notes bearing date at Lebazzon, in the county of Grafton, October 27, A. D. 1869, and payable to the order of said Wood & Ames, at the First National Bank of Lebanon, N. H., the fiz’st of said two last mentioned notes being for the sum of $152.20, payable in three months from date, and the second of said two last mentioned notes being for the sum of $172.10, payable in three months from date, which said two last mentioned notes the said Wood & Ames*, in good faith and for a sufficient consideration, duly assigned and transferred to said George Hunt, John 0„. Cox, and William B. Kilburn, partners as ‘ aforesaid; and this they are ready to verify. Wherefore they pray judgment that said three notes first in this plea mentioned were so transferred as in this plea is alleged, and for their costs. By their attorney, Edmund Burke.”</p> <p>4. “ And the said Geoz-ge Hunt, John O. Cox, and William B. Kilburn, by leave of court here for that purpose first had and obtained, come and defezid, &e., when, &c., azzd say, that the said William H. Gray ought not to be charged as trustee of said Charles A. Wood, by reason of anything contained or set forth in the said disclosure of the said Gray, because, they say, that the debt or demand set forth in the said declaration of the plaintiffs against said Charles A. Wood was not due and owing by the said Chazles A. Wood to the said Benjamizi Wood, deceased, in his lifetime, nor is it due and owing to the estate since lzis decease, but was fraudulently contracted by the said Charles A. Wood, without consideration,' and with intent to defraud the creditors of tlze said Chazies A. Wood, and especially to defraud the said Geoz’ge Huzit, John O. Cox, and William B. Kilbunz, partners as aforesaid, to whom the said Charles A. Wood was then and still is indebted, as partner of the firm of Wood & Ames, in a large sum, to wit, the sum of four hundred dollars, for the security of the payment of which sum the said Chazies A. Wood, befoz’e the writ in this suit was served on said tz-ustee, in good faith assigned the three notes mezitioned in the said disclosure of said Gray, first, becoming due; and this they are ready to verify. Wherefore they pray judgment that said debt of the said Chazies A. Wood, in the plaintiffs’ declaration mentiozied, is fraudulent and void, and that said three notes were so transferred, and for their costs. By their attorney, Edmund Burke.”</p> <p>To these pleas the plaintiffs demurred, alleging the following causes of demurrer: 1. The said pleas severally show no claim by the said claimants to the fund for which the trustee,William H. Gray, is sought to be charged. 2. The pleas assume to be in bar of what the claimants term the disclosure of said Gray, which disclosure, if any exists, furnishes no part of the .antecedent pleadings or record of the case. 8. The commencement and conclusion of the pleas are unconformable and inconsistent with each other. 4. The several pleas are argumentative, and allege no claim in favor of the claimants.</p> <p>The demurrer having been overruled, the plaintiffs excepted, and seasonably tendered a bill of exceptions, which was allowed.</p> <p>The plaintiffs then filed replications. The replications to the first and second pleas traversed the allegations that the notes were the partnership property of Wood & Ames, and alleged that they were the individual property of Charles A. Wood. On these replications issue was joined. The replications to the third plea admitted the transfer of the Gray notes by the defendant to the claimants, but alleged that the note upon which this action was founded was a valid debt, due from the defendant, in his individual capacity, to the plaintiffs’ intestate, existing'prior to and at the date of the assignment to the claimants of the three notes first mentioned in the' claimants’ third plea. The claimants contended that this replication to the third plea was a waiver of the demurrer to the fourth plea ; but it was ruled otherwise, subject to exception. The claimants rejoined, traversing the above allegations in the third replication, and issue was joined on this rejoinder. The replication to the fourth plea traversed the allegation that the debt sought to be recovered by the plaintiffs in this action was contracted fraudulently, or without consideration. Issue was joined on this traverse.</p> <p>The jury failed to agree upon a verdict on the third and fourth issues, but agreed upon a verdict upon the first and second issues, finding that the notes were not partnership property. Against the claimants’ objection, the court received the verdict upon the first and second issues, and caused the following entry to be made on the docket: “ Verdict for the plaintiffs on first and second issues. The jury disagreed as to third and fourth issues. Continued.” To these proceedings the claimants excepted.</p> <p>The claimants moved to set aside the verdict, on the ground that one of the jurors was the uncle of one of the plaintiff’s counsel. Upon inquiry, the court found that the alleged relationship existed, but denied the motion. The claimants excepted, and tendered a bill embracing all the above exceptions by them taken, which was allowed.</p> <p>I. The issue in this case is the chargeability of the trustee.</p> <p>The plaintiffs claim to charge the trustee for the three notes claimed by the claimants, on the ground that the principal defendant was owing to their intestate an individual debt, which was to be paid out of his individual property before such property could be applied in payment of the company’s debts of Wood & Ames, of which firm he was a partner.</p> <p>The claimants claim the throe notes in question, and that the trustee should not be charged for them in this suit, on the ground — l,that they were the property of Wood & Ames, and were duly assigned to them before the commencement of this suit, as collateral security for a debt owing to them by said partnership ; and 2, that if the notes were not the property of Wood & Ames, but were the individual property of the principal defendant, the debt alleged to be due from him to the plaintiffs’ intestate was not a valid debt, but was fraudulent and void, and therefore the assignment of the notes by the principal defendant to them was valid as against the plaintiffs.</p> <p>The facts are set forth in the pleadings which substantially presented two questions for the determination of the jury, — viz., 1. Were "the notes the property of Wood & Ames when assigned to the claimants ? 2. Was the debt, alleged to be due from the principal defendant to the plaintiffs’ intestate, a valid, subsisting debt ?</p> <p>II. But before replying to the pleas of the claimants, the plaintiffs demurred to them, setting forth four special grounds for demurrer; and the first question presented is, Is the demurrer sustainable ? The claimants contend that It is not sustainable, because the facts assumed as special causes of demurrer áre not true. 1. The demurrer alleges that the claimants show no claim to the fund in the hands of the trustee. That ground is not true, as the pleas fully show. 2. That the disclosure of the trustee is no part of the record. That is not true, in point of fact. That disclosure, after having been sworn to, becomes a part of the record, and is the foundation of the judgment for or against the trustee. The substantial issue raised by the pleadings is, the cliargeability of the trustee. The pleas, taken, together, are in the nature of a declaration setting forth the facts which constitute the claim of the claimants to the fund in the hands of the trustee. It is a proceeding authorized by the statute, and in form sanctioned by the supreme court. . Gen. Stats., p. 469, ch. 280, secs. 21-23; Amosleeag Manufacturing Co. v. Gibbs, 28 N. H. 316. 3. Nor are the facts, assumed as the third ground for demurrer, true: the commencements and conclusions of the several pleas are conformable to the subject-matter pleaded, and furnish sufficient ground for a verdict that the trustee is not chargeable as claimed by the plaintiffs. 4. Nor are the facts, assumed as the fourth ground for demurrer, true. The pleas are not argumentative, and they do allege a' claim in favor of the claimants. But, if the pleas are defective, as alleged in the demurrer, their defects are waived by the plaintiffs’ pleading over. They should have relied on the sufficiency of the demurrer, and rested until the issues of law tendered by the demurrer, and attempted to be raised by the bill of exceptions, had been determined. Campbell v. Wilcox, 10 Wall. (U. S.) 421; Aurora City v. West, 6 Wall. 142 — 7 ib. 82-107; JEvans v. Gee, 11 Peters 80. The same principle is embodied in the rule of pleading, by which the defendant waives all defects appearing on the face of the declaration, not fatal to the plaintiffs’ right to recover in any event by pleading to it instead of demurring. 1 Chitty’s PL 710 ; Stephen’s PL 165 (London ed., 1824); Gould’s PL, ch. IX, part 1, sec. 22.</p> <p>III. But if all the grounds of demurrer should be held not to have been waived by the plaintiffs’ pleading over, then the replication to the third plea was a waiver of the demurrer, so far as applicable to the fourth plea. In averring that the debt due from the principal defendant to the plaintiffs’ intestate was a valid debt, it substantially denied that it was a fraudulent one, as alleged in the fourth plea of the claimants. It was substantially taking issue on the matter alleged in the fourth plea.</p> <p>IY. No legal verdict was in fact rendered in this case. The verdict must embrace the whole matter in issue between the parties, and find sufficient upon which to found a judgment. It must find upon all the issues presented by the pleadings, — unless a finding upon one or more of them will authorize a judgment. If it do not so find, it is bad. It is a nullity if no judgment can be rendered upon it. 3 Bouv. Inst. 500, sec. 3264; Patterson v. The United States, 2 Wheat. 221; Kirkpatrick v. S. W. Railroad Bank, 6 Humph. 45; Sutton v. Dana, 1 Met. 383; French v. Hanchett, 12 Pick. 15 ; Fenwick v. Logan, 1 Mo. 401 — 3 Ú. S. Dig. 628, par. 27; Anderson v. Anderson, 4 Hayward 255 — 3 U. S. Dig. 628, par. 32; Vines v. Brownrigg, 2 Dev.; Phillips v. Hill, 3 Texas 397; 3 Wooddesson’s Lectures 200; 3 Tomlin’s Law Diet. 735, 737, ed. of 1836 ; 3 Salk. 374 ; Carr v. Stevenson, 5 Humph. 559 — 5 U. S. Dig. 917, par. 91; Kintz v. McNeal, 1 Denio 436 ; Finymorev. Sanky, 1 Cro. Eliz. 133 (London ed., 1790), and authorities there cited; Hilliard on New Trials 110, sec. 21, &c.; 5 Abbott’s N. Y. Dig. 225, par. 468; Hann v. Field, 3 U. S. Dig. 633, par. 184; Tucker v. Cochran, 47 N. H. 54; O’Brien v. Hilburn, 22 Texas 615 ; Ronge v. Dawson, 9 Wis. 246 ; White v. Bailey, 10 Mich. 155 ; Thompson v. Tinnin, 25 Texas (Supp.) 56; Walker v. Talioferro, 2 Brev. 390 — 5 U. S. Dig. 915, par. 23 ; Cole v. State, 5 Eng. 318 — 11 U. S. Dig., par. 10 ; Hilliard on New Trials 108, sec. 20; Gardiner v. Vidal, 6 Rand. 106 — 3 ü. S. Dig. 631, par. 111.</p> <p>In this case no judgment can be rendered on the finding of the jury. If they had found either of the substantial issues of fact for the claimants, — viz., 1, that the notes were the property of Wood & Ames, and were assigned as alleged; or 2, that the alleged debt of the principal defendant to the plaintiffs’ intestate was not valid, — a judgment could have been rendered for the claimants. Either fact was fatal to the claim of the plaintiffs. To justify adjudgment for the plaintiffs, both facts or issues should have been found for them.</p> <p>V. But can the facts found be taken out of the case, and the facts- or issues not found only be submitted to the jury on another trial ? Can one jury find part of the facts which go to constitute the verdict of chargeable or not chargeable, and another jury find the remaining-facts, .and render the general verdict of which all the facts in issue are elements ? Can one jury find part of the facts, another jury the remainder, and the court, from the two sets of facts found, conclude the verdict ? In other words, can a cause be tried by piecemeal ?</p> <p>The case of Lisbon v. Lyman, 49 N. H. 553, is not ignored in this argument. The opinion of the learned judge in that case, subjected to a thorough analysis, is believed not to conflict with the positions taken by the claimants in this case, in reference to the character of the verdict, if it be one, entered on the docket by the learned judge who tried it.</p> <p>That verdict, if it be deemed one, as will be seen, is not supported by authority. ■ It is opposed by the analogies of many cases heretofore decided and above cited. It will be found to be very inconvenient in the practical administration of justice.</p> <p>In Kintz v. McNeal, 1 Denio 436, above cited, it was held that a count for erecting two dams, and cutting trenches, &c., a verdict silent as to the trenches, &c., and extending to one dam only, is defective.</p> <p>If the ruling in the case at bar is law, that portion of the verdict finding as to one dam, and nothing else, should have been entered on the docket as determined, and-the questions as to the other dam and the trenches submitted to another jury, and the last jury, finding the facts omitted by the first, should' lump the whole together in the verdict which the pleadings require ; or, they should have found the facts omitted, and the court should have concluded the general verdict from the findings of both juries.</p> <p>Again: a special verdict, finding the defendant guilty of the facts charged in the indictment, but not guilty in the county in which the offence is laid, was held bad. Commonwealth v. Call, 21 Pick. 509.</p> <p>If the doctrine upon which the ruling in this case is based is sound, the finding in the last case cited, so far as the facts charged were concerned, should have been entered on the docket, and the question as to the place where the offence was committed left to a second jury, who should return the general verdict of guilty, on which the judgment and sentence should be based.</p> <p>And, in an action of trover, on a plea of not guilty, if the jury should find the fact of property in the goods in the plaintiff, and disagree as to the conversion, should the fact found by the jury be entered on the docket as- determined, and the conversion arid the general verdict to be found be left to a second jury ?</p> <p>Such a practice would lead to interminable confusion, injustice, and error in the trial of causes. . -</p> <p>In all trials, the testimony is usually so blended as to affect, more or less, all questions submitted to the jury. To separate them, and to submit part to one jury and part to another, could not, it would seem, fail to lead to difficulty, and oftentimes to injustice. The whole cause should be submitted to the jury — all the questions of fact involved in the issue; and to be embraced in the final verdict.</p> <p>VI. As to the remaining question — the competency of the jurors— the plaintiffs’ counsel knew of the relationship, and did not make it known to the court, — which is sufficient cause for setting aside the verdict, so far as found.</p> <p>Jurors are excluded from the panel for very slight interest in the cause. Hilliard on New Trials 154, secs. 60-63, and authorities cited. And for interest in the question — lb. 155, sec. 65. So, slight degrees of relationship, even being cousin to the defendant’s wife, are causes for excluding jurors. Ib. 151-153, secs. 58, 59.</p>

<p>At common law, it is the duty of a common carrier, in the performance of his public service of transportation, not to make or give any undue or unreasonable preference or advantage to or in favor of any person, and not to subject any person to any undue or unreasonable prejudice or disadvantage, in respect to terms, facilities, or accommodations; and such carrier is liable for the damage caused by a violation of this duty.</p> <p>This general rule of the common law is approved and confirmed by Gen. Stats., ch. 149.</p> <p>An action lies, in this State, for damage caused by an unreasonable discrimination'practised in Maine in violation of the law of that State on this subject.</p>

Indictment, found at the April term, 1878, against Everett I. Ober,. for keeping spirituous liquor for sale. The defendant being produced and sworn in his own behalf, testified in chief substantially as follows: First. That he had never seen or known anything of the existence of a certain bottle of spirituous liquor found upon his premises on March 26th, by virtue of proceedings under a search-warrant, until the same had been so discovered. Second.

Assumpsit, by Alanson L. Haines against The Republic Fire Insurance Company of the City of New York, upon a policy of insurance dated October 20, 1870, insuring $1,500 upon a house, $1,500 upon two barns, and $300 upon hay. The buildings were situated upon a farm in Plymouth known as “ the Thompson place,” and were destroyed by fire November 11,1870.

<p>The plaintiff fixed the rates for water at $10 per year, and afterwards raised the rates for the same amount of water to $12 per year, to commence March 1,1870, and notified the defendant and others interested, but the defendant did not assent. The rates were paid in advance for the year on March 1. When called upon March d, 1870, the defendant offered $10, and refused to pay any more for the year. This the plaintiff refused to receive, but let the water run to the defendant’s house as before for two years, and brought this suit to recover the $12 per year and interest. The defendant tendered $10 .per year and interest, and pleaded the general issue as to the residue. Held, that the plaintiff could not recover more than the amount tendered.</p>

<p>Prior to the statute of 1872, chapter 48, a remedy by action- on the case for an injury to real estate did not survive in favor of an administrator.</p> <p>To sustain an action on the case by an administrator for an injury to real estate after the death of Ms intestate, the facts on which his right to sue depends must be stated in the declaration.</p>

This is a proceeding under the bastardy act, in the name of the State, by Maria W. Corey against James B. Sumner, Jr. The respondent was arrested under a warrant issued by a justice of the peace in this county upon a complaint made and sworn to in Vermont, before a justice of the peace of that State.

Trespass, by Oliver Forrist against Henry M. Leavitt, a deputy sheriff, for assault and false imprisonment.

Assumpsit, by John W. Ellingwood against Wm. W. Bragg. The plaintiff’ offered Wm. Heywood as an expert, to give an opinion upon the question whether a long account upon the defendant’s books against the plaintiff was written at different times, as it purported to be on the book, or whether it was all written with the same pen and ink and at the same time.

<p>In an indictment founded upon Gen. Stats., ch. 259, sec. 8, which provides for the punishment of any person who shall “ wilfully obstruct or assault any officer or person, duly authorized, in the discharge of any duty of his office,” it is sufficient to designate the party assaulted as “then and there being a collector of taxes of said town,” without alleging that he was duly authorized to serve athe warrant, in the service of which he was obstructed.</p> <p>It is unnecessary to set out, in hcec verba, the process under which an officer is acting; but it is sufficient so to describe it as to identify it, and inform the respondent of what he is called on to answer.</p> <p>Proof that an individual has acted notoriously as a public officer is prima facie evidence of his official character, without producing his commission or the record of his appointment.</p> <p>Gen. Stats., ch. 54, sec. 8, provide that a collector of taxes, for want of goods and chattels whereon to make distress, may take the body of any person neglecting or refusing to pay the tax assessed against him. Under the proper construction of this law, the collector is not required to search for property, nor to incur labor, expense, or risk in taking it. He is only' required to take such property as shall be specifically produced and tendered to him, together with indemnity, if required.</p> <p>It is no defence to an indictment for obstructing a tax-collector in the service of his warrant, that the proceedings upon which the assessment of the tax was founded were irregular, and the tax, in fact, illegal, nor that the warrant may have been defective in point of law. If the warrant be not deficient in the general form of it, and have issued in the ordinary manner from the selectmen, the collector is required, by law, at his own peril, to pay obedience tp the process, and will be protected therein.</p>

Indictment, charging that Jane Cassady, the defendant, “ with force and arms upon one Samuel H. Legro, then and there being sheriff of the said county of Coos, and then and there being in the due and lawful execution of his said office, in the service of a warrant issued by Irving W. Drew, a justice of the peace for said county of Coos, against Frank Cassady and Jane Cassady, in a criminal case, founded upon a complaint, under oath, duly exhibited to said justice, against…

Assumpsit, by Cummings M. Winchester against Oscar Nutter and Elden Earnham, upon an account annexed, £tfor furnishing twenty-four suppers, at your request, at sevent.y-five cents each, price agreed, $18.” It appeared, in evidence, that the plaintiff and two defendants and several others met one evening at a school-house in Lancaster, for the purpose of considering the subject of having a squirrel hunt in that neighborhood. The plaintiff was chosen chairman of the meeting.

Assumpsit, by Seneca A. Schoff against Henry Gould. The question was, whether the plaintiff’, or one Simeon Eastman, owned lot No. 194 in the fourth division of Stratford. The plaintiff proved an entry and possession under a warranty deed. The defendant set up a tax-title in Eastman. Under Eastman’s tax-title there was no entry upon the land until several years after the entry under the plaintiff’s title ; and the defence rested upon the validity of a collector’s sale.

Assumpsit, by Julia A. Gamsby against Orman P. Ray. The plaintiff commenced a suit against the defendant by writ dated July 25,1872, which writ was duly served upon the defendant by attaching property and leaving a summons.

Writ op Entry, by George W. Cahoon and Mary L. Cahoon, his wife, against Ebenezer S. Coe, to recover the grant of land called Wentworth’s Location. Plea, nul disseizin.

This is an indictment presented at the April term of this court, 1871. The bill contains three counts. Held: that he was chargeable with contributory neglect.” Rupertsberger v. Northern Central R. R., Albany Law Journal, No. 11, p. 172, March, 1873. “ Several witnesses testified they did not hear the bell; others swore positively that they did hear it.

<p>Assumpsit, by Asenath Keniston against Freeman Cliesley. The defendant pleaded in abatement, praying judgment that the writ be abated because the summons is not in due form of law, in this, that by said writ the defendant is required to answer to the plaintiff in the court to be liolden on the third Tuesday of October, A.T). 1872 ; and in and by said summons the defendant is required to answer to the plaintiff at the court to be holden on the third Tuesday of August next after the fifth day of August, A. D. 1872. The plaintiff demurred. The writ and summons were dated August 5,1872. The error was in inserting the word “ August ” in the summons where “ October ” should have been. Questions reserved.</p> <p>Wiggin, for the defendant, cited Baker v. Brown, 18 N. H. 551, and Nelson v. Swett, 4 N. H. 256.</p> <p>1. The defect alleged in the plea in abatement is, that “ the summons is not in due form of law as is prescribed.” Upon this allegation the issue arises. If it were of fact, the issue would be raised by traverse, but being of law, the issue is raised by demurrer. Upon this állegation the plea must stand or fall. Upon this issue the court must adjudge.</p> <p>Now, we submit that the summons is exactly in form prescribed by law in every particular. The specification under the videlicet in the plea cannot relieve the allegation. The defendant can be allowed to specify only such defect as is embraced in the allegation. The defect specified is a variance between the writ and summons, and not a defect “ in the form prescribed by law.” The issue does not arise upon this specification. A specification is not traversable ; were it otherwise, this plea would be double. The plea must be so framed as to enable the plaintiff, in a subsequent suit for the same cause of action, to supply the defect and avoid the mistake. But if the defendant is allowed to allege one defect, and specify another and different defect, and the court can give judgment as to either, then he not only obtains the advantage of pleading double without its hazards, but, by his ambiguity, he avoids pointing out to the plaintiff his error. If the specification under the videlicet is material and substantial, then we submit there is a variance between the specification and the allegation, and the videlicet is useless to avoid the variance.</p> <p>The case of Nelson v. Swett, 4 N. II. 256, is no authority for the defendant. The defect there was the same as this ; but the defect alleged was, that the summons did not contain the substance of the writ. The court said such was not the defect, but that the defect was, that the summons did not cite the defendant to appear at the time and place where the writ was returnable; and the court fell into the singular error of giving judgment for the defendant, upon a plea in abatement, for a defect not pointed out by his plea.</p> <p>But Judge Gilchrist cites Nelson v. Swett, ante, as authority for the doctrine of variance between the writ and summons — 18 N. H. 554; and this is the true doctrine of the case. In the case of Baker v. Brown, 18 N. H. 551, cited by the defendant, the present point was not taken. The demurrer was special; and the only points taken under it were, that the writ was not correctly enrolled, and that there was no proper prayer of judgment, — both of which the court found against the plaintiff, and of course, therefore, gave the defendant judgment. But the court did not hold that the summons was not in form prescribed by law, but that there was a variance between the writ and summons. Neither of these cases cited, therefore, is in point here.</p> <p>2. The defect in the summons is amendable, the whole record being before the court. Adams v. Wiggin, 42 N. H. 554. The person and the case are readily understood by the court, and the defendant has appeared.</p>

<p>Trover, by Eben W. Hovey and Henry B. Nottage against Joseph S. Grant, for 21 barrels of whiskey and 1 barrel of gin, alleged to have been converted on August 26,1870. Writ dated October 4,1870. An agreement with reference to the purchase of the liquors by the defendant of the plaintiffs was made in Boston. The plaintiffs’ position was that the defendant bargained for the liquors at certain cash, prices, and that possession was delivered to him with the understanding and agreement that the defendant should have four days after the arrival of the liquors at Portsmouth (where the defendant resided) in which to examine them, at the expiration of which time the liquors were to be paid for, if found satisfactory, — otherwise to be returned, and that the liquors should remain the property of the plaintiffs till paid for ; that the defendant never paid for the goods, and so no title passed from the plaintiffs to the defendant. The plaintiffs also claimed that when the defendant bargained for the liquors, he had in fact no inténtion of paying for them, and obtained them by means of false and fraudulent representations ; in proof of which last petition they offered to show that, about the time of the purchase of the liquors in question, the defendant made very large and unusual purchases of liquors, of other parties, which he did not intend to pay for, and for which he subsequently paid, upon a compromise with his creditors, 25 cents on the dollar. The liquors were received by the defendant at Portsmouth, and some of them were sold by him. The purchase of the liquors was on August 24, 1870. The defendant’s position was, that he bought the liquors honestly, and in good faith; that he purchased about the same time large quantities of liquors of other parties, a controlling motive with reference to the purchase of them all being his expectation, entertained in common with other dealers, that the United States government would restore a heavy tax upon liquors, which tax had been suspended, and that the holder of large quantities, at the time of such restoration of the tax, would be largely benefited thereby ; that he agreed to pay cash for the liquors, if, after an examination of them upon their arrival at Portsmouth, they should be found such as had been represented with regard to quantity and quality; that the liquors arrived in due season, but an examination of them was delayed by reason of sickness in the defendant’s family: that he never made any bargain with the plaintiffs that the goods should remain theirs till paid for; that, before the arrival of the liquors at Portsmouth, the defendant, becoming dissatisfied by reason of some inquiries made concerning him by one of the plaintiffs, countermanded the order for them, but, upon receiving apologies, finally agreed to take them upon a credit of sixty days, and they were sent to him in accordance with this latter agreement; that, upon subsequent examination of the liquors, they were found to be of inferior quality, and not the same which he had purchased ; that Hovey, one of the plaintiffs, examined them with the defendant, and admitted that there was some mistake about it; that the defendant then offered to return the liquors, but Hovey requested him to sell them as best he could, and that he did sell them at half price.</p> <p>Whatever was at all material in the testimony of the plaintiffs was contradicted and denied by the defendant, and vice versa.</p> <p>Subject to the defendant’s exception, the plaintiffs were permitted to introduce the testimony of C. C. Moore, to the effect that, on or about September 20, he sold liquors to the defendant to the amount of about f>600, on a credit of a week or ten days ; and that sometime in October of the same yeai7, but after the commencement of this suit, and after the goods, estate, stock in trade, and household furniture of the defendant had been attached to the amount of four thousand dollars upon the plaintiffs’ writ, he voluntarily compromised with the defendant, and accepted fifty cents on the dollar in discharge of the debt. The witness related the conversation leading to this compromise, and testified that the defendant said that was all he was going to pay the witness, and was more than he had paid any one else. “I told him I didn’t suppose there was any law that I could collect the bill, but I thought it was a piece of rascality for him to cheat me out of it; that it was a put-up job by him and others to cheat us Boston folks out of our liquors.” The testimony of John S. Day, Charles B. Brown, and J. D. M. Sherman, similar in substance to that of Moore, except as to the conversation leading to a compromise of their claims, was also admitted, subject to the defendant’s exception.</p> <p>Subject to the defendant’s exception, the deposition of B. F. Warner was read, as follows : “ He [the defendant] applied to me to purchase from me 25 barrels of whiskey, about the 20th of September. * * * I shew him various samples, and he selected a sample of the 25 barrels. The price was agreed upon, — that is, I told him what the price would be. He then stated that he would take the goods and pay cash for them. I asked him who he could give me as reference. He stated that he bought goods of quite a number of the leading houses in our market. He referred me, I think, to a brewer, a Mr. Jones, of Portsmouth. I asked him what he considered cash. He said he would pay for the goods upon their arrival in Portsmouth. I replied to him that I would only sell him the goods upon presentation of the bill of lading, which I would send by express. The money was to be paid before he received the goods. He declined to make the negotiation, saying that he did not wish to purchase goods and pay for them until after he had received them and examined them.”</p> <p>The court declined to instruct the jury as requested by the defendant :</p> <p>“ 1. That the sale of intoxicating liquors, and the keeping of the same for sale, being made unlawful and penal by the statutes of Massachusetts, and the liquors themselves being declared a nuisance, no action can be maintained for the liquors or the price thereof, though the contract of sale was as alleged by the plaintiffs [i. e., conditional that the liquors, though delivered by the plaintiffs to the defendant, were to remain their property till paid for].</p> <p>“ 2. That the liquors, being a nuisance as aforesaid, had no value at the time of the conversion, and therefore the plaintiffs can recover nothing, or only nominal damages in this suit.</p> <p>“ 3. And that if the goods were converted [as alleged in the declaration] in this State, the measure of damages is the lawful market value of the goods here; and that the sale being prohibited by the statute, the value of the goods converted is to be estimated accordingly ; and that if the goods were converted in Massachusetts, a similar rule will apply.</p> <p>“ 4. That if the defendant obtained possession of the goods by a fair contract of sale, without any false or fraudulent representation, his intentions are not matter of inquiry, and are of no consequence in this suit; and especially that any intention he may have had of proposing to the plaintiffs a compromise, or a settlement by compromise, or by paying part for the whole was not unlawful, and does not affect the rights of the parties in this action; and that if the defendant, when he bought the goods, did have in mind the fact that he could not be compelled by law to pay for them, this does not affect the sale nor justify this action ; and that if, when he bought the goods, the defendant intended to avail himself of the laws of the State where the contract was made, as a defence to any action that might be brought against him for the goods, the plaintiffs being at the time aware of the existence of the law, this does not invalidate the sale nor justify the action.”</p> <p>The court charged the jury that [“ if the defendant bought the liquors, promising to pay for them, but at the same time not intending to pay for them, for any cause intentionally concealed from the plaintiffs, and obtained the goods by means of such concealment, the plaintiffs are entitled to a verdict] ; but the intention of the defendant in making this purchase from the plaintiffs is the only question in issue in this particular, and his intention in making other purchases is material only so far as it may tend to show what was his intention in buying of the plaintiffs. And his intention at the time of buying of the plaintiffs, and not any intention formed afterwards, is alone material in this' suit.”</p> <p>The court instructed the jury that the measure of damages was the market value of the liquors at the time of the alleged conversion.</p> <p>To so much of the foregoing instructions as is enclosed in brackets, and to the refusal of the court to give the instructions requested, the defendant excepted. Yerdict for the plaintiffs for $2,620.58. Motion by the defendant to set the same aside. Reserved.</p> <p>I. The plaintiffs, to prove that the defendant, on'August 24, 1870, when he bought the liquors described in the declaration, did not in fact intend to pay therefor, were permitted to prove, by Moore and others, that the defendant bought other liquors September 20, 1870, for which he paid only fifty cents on the dollar, by a voluntary compromise made after the commencement of this suit, and after the attachment of his goods, estate, stock in trade, and household furniture. This evidence was incompetent, and calculated to mislead the jury, because (1) the compromise was voluntary. The acceptance of part of a debt for the whole, with the consent of both parties, cannot be a fraud or evidence of a fraud. (2) The compromise proved was after the commencement of this suit, (3) and after his property was attached, and his business broken up. (4) The purchases were not contemporaneous with that for which this suit is brought; and an intention as to them, existing September 20 or later, had no tendency to show that a similar intention existed a month previously. The facts shown had no lawful tendency to prove fraud, because they were all innocent, or consistent with innocence, and they do not come within the rule laid down in Whittier v. Varney, 10 N. H. 294, Bradley v. Obear, ib. 480. In all the cases of this class, the plaintiffs have been permitted to show a fraudulent intent by proof of other fraudulent transactions. But in this case, the attempt was made to show fraud by proof of transactions not fraudulent. It is to be observed, that during the trial the ability of this defendant to pay for all he bought, or attempted to buy, was not questioned. The effect of the admission of this evidence was, that fraud was presumed, not proved.</p> <p>II. The voluntary opinion expressed by Mr. Moore was not called for by anything said or done by the defendant, and was certainly prejudicial to him. Under what rule did it become evidence in the cause ?</p> <p>III. The negotiation of the defendant with Warner certainly was not evidence of any fraudulent act or intent. Its admission prejudiced the defendant, because it was received as evidence of fraud, and in support of the plaintiffs’ proposition to prove fraud.</p> <p>IV. By the laws of Massachusetts (which were evidence at the trial), spirituous liquors are declared a nuisance, and the sale of them is unlawful and penal. The plaintiffs seek to recover the value of liquors which they admit they sold to the defendant, because they say the sale was conditional, and the liquors, though delivered, were to remain their property until paid for. If the action were to recover the price agreed upon, it certainly could not be maintained. But this action is in effect founded on the alleged conditional sale, which was illegal; and the plaintiffs seek to recover the price of the liquors, because the terms of the contract of sale were not complied with by the defendant. The maxim, Ex turpi causa non oritur actio, is not limited in its application to any form of action, nor to causes which proceed from contracts. 1 Hilliard on Torts 161; Holman v. Johnson, Cowper 343. In this case, however, the real foundation of the action is the contract to take the goods and pay for them or return them. It is not easy to perceive any reason for the accustomed refusal of the court to enforce contracts founded on illegal considerations, which is not applicable to the present case. If sales of spirituous liquors are unlawful, the delivery of them upon a conditional sale is equally so. If the policy of the law is to refuse its aid to enforce absolute contracts, the principle applies equally to conditional sales. If the distinction claimed by the plaintiffs be established, all unlawful sales will henceforth become conditional, and the rule enunciated in the maxim I have quoted becomes a matter of form easy to be evaded. The case of the plaintiffs was also put distinctly upon the allegation that “ when the defendant bargained for the liquors, he had in fact no intention of paying for them, and obtained them by means of false and fraudulent representations.” To maintain 'this action, the plaintiffs necessarily claim through and by means of their own illegal contract. They say, We were cheated in an unlawful sale which we made. All the authorities agree that if the plaintiffs are unable to establish their claim without relying upon the' illegal agreement originally entered into between them and the defendant, no action can be maintained. Tindal, C. J., Fivaz v. Nicholls, 2 Manning, Gr. & Scott 500, 512, 513 ; Phalen v. Clark, 19 Conn. 432 ; Gregg v. Wyman, 4 Cush. 322 ; Woodman v. Hubbard, 25 N. II. 67.</p> <p>The rule is forcibly illustrated by Kenton, C. J., in Booth v. Hodgson, 6 Term 408, 409. The property was placed in the defendant’s hands for an illegal purpose. 1 Story Eq., sec. 61; Armstrong v. Toler, 11 Wheat. 258. The rule is founded on the illegal nature of the transaction. It is not intended to benefit either party; and their respective merits are not to be weighed. King v. McEvoy, 4 Allen 110; Galligan v. Fannan, 7 Allen 255.</p> <p>Y. By the express provision of the statute of Massachusetts, where the contract was made, the keeping or sale of spirituous liquors is declared to be a nuisance; the act reduces their value to nothing. If converted there, the measure of damages would be the market, value of the article there; and so,if the conversion were in this State. By this must be meant the lawful market value, which is nothing, because the liquors cannot lawfully be sold in common market in either State. The court cannot sanction a market (or sale) value, which can exist or be ascertained only by a violation of the law. We do not controvert the idea that liquors are property — 25 N. H. 540, and Fuller v. Bean, 30 N. H. 187; but our complaint is, that in the charge and in the refusal of the instructions prayed for is recognized an unlawful market value, founded on illegal sales, as the measure of damages. The prayer was, that the jury be instructed to estimate damages according to the lawful market value of the liquors.</p> <p>YI. The whole of the fourth instruction asked for hy the defendant should have been given to the jury. (1) A simple intention cannot affect an act in all other respects lawful and right, because an evil intention may be repented of before the time of action comes; and it is wholly beyond the province of human law to inquire into simple, unexecuted intentions. The attempt to do it must lead to the greatest abuses, and would open the door to inquisitorial tyranny. The rule of the criminal Jaw is well established. 1 Russ, on Cr. 46. Mr. Story declares that mere intention cannot amount to a fraud unless coupled with some act. 1 Story Eq. Juris., sec. 61. And in People v. Cook, 8 N. Y. 67, it is said that “fraud in judicial proceedings can never be predicated of a mere emotion of the mind, disconnected with an act occasioning injury to some one.” Every definition of fraud in the books includes something more than mere intention — 1 Eonblanque Eq., book 1, ch. 2, sec. 8, p. 123 ; Chesterfield v. Jansen, 2 Yes. 155— such as misrepresentation or suppression of the truth. Willink v. Vanderveer, 1 Barb. 599. Fraud can never be imputed in a transaction in itself lawful. In the present case, every act of the defendant was perfectly fair and lawful (except as a violation of the liquor laws). He made no misrepresentation; lie concealed no fact. He was able to pay, and be would have paid promptly had the liquors been of the quality represented by the plaintiffs. Whether he in his heart intended to pay (a difficult and usually a most unsatisfactory inquiry) is immaterial; he may have altered liis purpose forty times on the day of the sale, without affecting the plaintiffs in any way. The contract was not induced by any false representation. Bronson v. Wiman, 8 N. Y. 182. If the defendant knew that he could not by law be compelled to pay, so did the plaintiffs. Hutchinson v. Brown, Clarke (N. Y.) 408. And if he, at the moment, resolved that he would avail himself of the law, can it be said that it was unlawful or fraudulent for him so to do ? If so, it would always be fraudulent for a party to an unlawful contract to invoke in his defence the settled law of the land: the time when the intention to make such a defence is formed, cannot alter its character. But, as we have contended above, the cause of the action being base, it is not for the court to inquire into motives, intentions, or even positive acts of fraud. (2) If the intention was, as in the instruction prayed for, to propose a compromise, or to settle by compromise, this could not be unlawful, for it implies that the assent of the plaintiffs is to be had to the settlement. Volenti non jit injuria. This instruction was properly asked for, because the principal evidence of fraud at the trial was the fact that the defendant had compromised with other parties by paying to them fifty cents on the dollar. (3) But the instruction prayed for went much further ; and the court refused to direct the jury to the effect that the mere fact that the defendant, at the time he bought the goods, had in mind the law, and that he could not be compelled to pay for them, did not affect the sale or justify this action. Such instruction was necessary to prevent the jury from being misled by the argument of the plaintiffs, and by the charge that the intention was the question in issue, and by the evidence relating to the compromise with other parties. The refusal must have been made upon the ground that the fact that the defendant had the law in mind at the time of the sale affected the soundness of the contract, and justifies the action of trover; and the jury must have drawn such an .inference. Thus, the maxim, uIgnorantia legis,” &c., was reversed, and a purchaser is- punished for too much knowledge of the law. (4) In the case supposed, in the last clause of the instructions prayed for, which must have been exactly the case at bar, the whole question of intention is brought to its test. Both parties to the sale of the liquors knew that the contract to pay the price could not be enforced by law. The defendant must be regarded as saying to the plaintiffs, — I will take these goods if you will rely upon my simple promise to pay for them. . I know, and you know, that you can maintain no suit for the price. And the plaintiffs reply,— We make the sale with this understanding. If an intention to rely upon the established law, openly expressed, would have avoided the imputation of fraud, how does the case differ if the same thing was understood by both parties, though not verbally expressed? Volenti non jit injuria. Jeremy on Eq. Juris. 366; 1 Story Eq. Juris., sec. 137, note.</p> <p>The plaintiffs’ positions at the trial were,—</p> <p>I. That the defendant obtained the possession of the goods sought to be recovered, upon the condition that the title was to remain in the plaintiffs until paid for. Our courts have always recognized this doctrine of conditional sales, and, in case the condition is not fulfilled, the right of the vendor to repossess himself of his goods. Fisk v. Fwen, 46 N. H. 173 ; McFarland v. Farmer, 42 N. H. 386, and other cases. Such, too, is the law of Massachusetts. Coggill v. II. f N. II. li. B. Go., 3 Gray 545 ; Sargent v. Metcalf, 5 Gray 306 ; Blanchard v. Child, 7 Gray 157, and other cases. The courts here, as well as in Massachusetts, have also holden liquors to be property, notwithstanding the various prohibitory statutes of these States, and have universally protected the rights of owners in them against wrong-doers. Miller v. Stevens, 100 Mass. 518 ; Brown v. Perkins, 12 Gray 89 ; Commonwealth v. Coffee, 9 Gray 139 ; Priest v. Pinkham, 18 N. H. 520; Fuller v. Bean, 30 N. Ii. 181; Andover v. Kendrick, 42 N. H. 324; Fisher v. Me Girr, 1 Gray 47 ; Break v. Adams, 3 Gray 570. These two propositions of law, considered together, lead irresistibly to the conclusion that the plaintiffs had the right to reclaim their goods upon failure of the precedent condition of sale, and if the defendant refused to restore them upon demand, his retention or conversion of them was tortious. But this doctrine of law has been considered and applied to this very class of goods by the court in Massachusetts. Booraem v. Crane, 103 Mass. 522. And although we have no doubt that our court would come to the same conclusion, yet the decision of the court in that State must conclude this case, — because this conditional contract and delivery under it were completed in that State, and the plaintiffs only pursue their remedy here. Kill v. Spear, 50 N. H. 253.</p> <p>II. The plaintiffs’ second position was, that the defendant, in conspiracy with one Albert M. Peck, obtained possession of these goods with the preconceived design not to pay for them or return them. The general proposition of law, that the purchase of goods with the preconceived intention of not paying for them is a fraud upon ‘the vendor, which, as between him and the pretended purchaser, robs him of no title to the goods, and passes none to the purchaser, is the doctrine of nearly, if not quite all, the cases. 2 Parsons on Contracts 770 ; 2 Hilliard on Torts 143; Wiggin v. Bay, 9 Gray 97; Bow v. Sanborn, 3 Allen 183. Perhaps it is only important for us to know that such was the law of Massachusetts at the time of this transaction. Bow v. Sanborn, 3 Allen 183. Well established as it is, we do not understand the defendant’s counsel to concede that such is the law; and he says, “ whether the defendant in his heart intended to pay, is immaterial.” His suggestions find answer in Bow v. Sanborn, ante, and 2 Parsons on Contracts 775.</p> <p>III. The defendant, in his brief, quotes, “ Fx turpi causa non oritur actio ; ” but the misfortune of his case is, that we do not rely upon an illegal contract as tlie basis of our suit. 103 Mass., ante. And the party withholding goods under such a contract is a wrong-doer. More than that, if the intention not to pay for these goods existed in the mind of the defendant at the time he was pretending to purchase them, there was no contract which passed title in them as between the plaintiffs and himself; and there was no violation of the law, save such as was contemplated by the defendant. In the language of Judge Hoar, the whole transaction was a mere fiction, a delusion. 3 Allen 183. The whole transaction amounted to nothing more than the tortious taking of the-goods by the defendant from the plaintiffs’ possession ; and, as said in Booraem v. Crane, there is nothing in the law regulating the traffic in liquors to prevent the recovery of the value of goods thus wrongfully obtained. This contract, also, was one simply forbidden, and not evil in itself (see Judge Redfield’s note to Hill v. Spear, 11 Am. L. Reg. (N. S.) 523), and, by the defendant’s own admission, was not executed, but only executory. If, therefore, the parties had been in equal fault, the maxim, “ Potior est conditio possidentis,” would not apply. Metcalf on Contracts 14; 3 Phillipps on Ev. 423 ; White v. Bank, 22 Pick. 189 ; Story on Sales, sec. 489.</p> <p>In his brief, however, and in his fourth request, for instructions, the defendant’s counsel has attempted to evade this long recognized principle of law by speculating as to the causes which might have led the defendant, at the time of his pretended purchase of these goods, to an intention not to pay for them; and he attempts to argue, that if he obtained the goods with an intention to compromise the plaintiffs’ claim, or to resist its entire payment by virtue of the law prohibiting the sale of liquors, the sale is not invalidated nor this action justified. We take it that the law does not distinguish as to the reasons which operated to produce the intention not to pay. “ If the ultimate design was unlawful, it is of no importance to the completeness of the offence, whether the means were lawful or not.” 1 Greenl. Ev., sec. 91. The false and fraudulent act is, the promise to pay, with the preconceived design of not paying, and its intentional concealment from the vendor. The force of the counsel’s argument seems to be, that the interposition of these defences are not illegal acts of themselves. True, they may not bo; but the promise to pay, which at the very moment is belied by the intent, is a false and fraudulent act. So, too; “ it is no crime to be poor,” and not to pay your debts when you have not the ability to do so ; but to buy goods with the pro'mise to pay for them, and with the preconceived design of evading payment by reason of your insolvency, is a fraud. This case, in this aspect of it, is akin in principle to the well established class of cases, avoiding an attachment of property, which has become exposed to the officers’ jurisdiction, by some false pretence, with the intention of seizing it. It is certainly lawful to attach property to secure payment of an honest debt, but the means used to obtain jurisdiction over it are bad. So it is legal (as the defendant’s counsel says) to avoid the payment of liquors by the law ; but to obtain possession of them under a false promise, and with the preconceived and concealed intent to defeat payment by such means, is (to adopt the counsel’s term) base.</p> <p>We fear we do not perhaps fully appreciate the (to us) somewhat remarkable reasoning that the purchase of the goods, with a promise to pay in full, but with the intention on the part of the defendant to settle by compromise, was not unlawful, because it implied the assent of the plaintiffs. The only answer necessary would seem to be, that if it implied any assent it would be a compulsory one, and that the intent to compel the acceptance of a partial payment is a design not-to pay as promised.</p> <p>Stranger still seems to us the complaint that the court did not, in so many words and no more, say to the jury that the mere fact that the defendant, at the time he bought the goods, had in mind the law, and that he could not be compelled to pay for them, did not affect the sale or justify this action. No one ever supposed it would do either, if he did not act upon it. The court, however, in its charge to the jury, instead of giving the equivocal instructions prayed for, stated, in exact terms, all the conditions necessary in order to entitle the plaintiffs to maintain their action:</p> <p>1. The promise to pay for the goods.</p> <p>2. The intention not to pay for them existing at the time.</p> <p>3. The concealment of this intention and its causes from the plaintiffs.</p> <p>4. The obtaining possession of the goods by means of such concealment.</p> <p>The instruction in this behalf went much further in the defendant’s favor than his request, and he has no cause of complaint.</p> <p>We have considered this fourth request for instructions at this time, because it seemed to us that it could be more legitimately discussed in this connection than any other; and, even if these instructions had not been properly refused in part, and substantially given in part, as we have attempted to show, still, we conceive that the defendant had no reason to find fault. The defendant’s position at the trial was, that he intended to pay for these liquors in full when he obtained possession of them; and his counsel, in his brief, notwithstanding the verdict, still deems it proper to assert it. The defendant denied under his oath, and his counsel as unqualifiedly in his argument, the existence of any intention, at the time of bargaining for these goods, of making any resistance to their full payment. On the other hand, the plaintiffs maintained that the defendant and Peck conspired to get possession of these goods, with a design not to pay for them; but they never contended during the trial that this design was predicated upon any intent to invoke the aid of the liquor law, but upon other grounds which are obvious from reading the case. There was, then, no position taken by either party at the trial, nor is there any fact found in the case, that justified such request. We do not believe that the court will be disposed to encourage any such legal ethics as will permit a party to base a request for instructions upon facts which they deny and the other side has never claimed.</p> <p>(1) There is nothing in the first request for instructions that has not been already discussed. How far the declaration of the Massachusetts statute, that liquors shall be regarded as a nuisance (if the conversion shall be found to have taken place in that State), would qualify the right of property in them, has been very fully considered and determined there. 12 Gray 89, 95. The terms of the statute there considered are in this particular identical with the law of 1869, which was in force at the time of this transaction.</p> <p>(2) (3) The consideration of the cases already cited also justifies the denial of the second and third requests made by the defendants (if the measure of damages should be determined by the laws of Massachusetts). “The general proposition may be laid down, that the value of the property converted is the measure of damages at the time and place of its conversion.” Sedg. on Ham. 479. The true test of the value of the goods often may be, but is not always, the market or current price. Selkirk v. Colb, 13 Gray 317 ; Kennedy v. WhitweXl, 4 Pick. 467 ; Stickney v. Allen, 10 Gray 352. It is unnecessary to argue that these goods not only had a market value, but were also valuable, for other purposes than in the market, to the plaintiffs.</p> <p>IY. (1) The plaintiffs claimed at the trial that the purchase of an unusually large quantity of liquors during a period of time extending from August 24 to September 20, but principally at these two dates, was in accordance with a plan of operations concerted by the defendant and Peck. The whole transaction was “ one general scheme of fraud,” and none of it can be appropriately styled res inter alios. The evidence of these other purchases, their magnitude, the circumstances attending them, the subsequent disposition of the property, the defendant’s unwillingness to pay according to his promise, and his ability or inability to do so, all bear directly upon the question of intent. State v. Johnson, 33 N. II. 456 ; Rowley v. Bigelow, 12 Pick. 311; Blodgett Paper Co. v. Parmer, 41 N. H. 403; Bradley v. Olear, 10 N. H. 480; Angier v. Ash, 26 N. H. 109. And the evidence of his attempt to purchase of Warner was admissible for the same purpose. All the ingenious suggestions employed by the defendant’s attorney in his brief against the admissibility of this evidence were very properly addressed by him to the jury in his closing argument, in his attempt to explain the suspicious conduct of his client in these several transactions, and the jury pronounced upon them’ in their verdict. If the defendant was compelled to offer a compromise, because, as his counsel contends, his property was attached and his business broken up, then this simple explanation of his conduct in this particular to the jury must have deprived our testimony of all its force; and, since no one could have presented this excuse for his conduct to the jury with more ingenuity and plausibility than the gentleman to whom he intrusted his case, and the jury having failed to accept it, we are compelled to the belief that the defendant has been more successful in persuading his counsel than the jury of the honesty of this explanation.</p> <p>(2) Mr. Moore’s remark was made to the defendant during his settlement with him, and was part of the mutual conversation that occurred during it. It related expressly to the entire purchases made at or about this time of the Boston dealers; and the conduct and reply, or absence of reply, of the defendant, when accused of fraud in relation to them, was certainly material.</p>

Assumpsit, by Randolph A. Delancey against The Rockingham Farmers’ Mutual Fire Insurance Company, on a policy of insurance dated November 19,1866, purporting to insure the plaintiff’s house, clothing, and provisions.

Assumpsit, by George C. Gordon against the Manchester & Lawrence Railroad.

<p>Assumpsit, by Alexander M. Ballou against Washington Y. B. Til-ton. 1. The defendant was sued as administrator of Jonathan Ballou. The plaintiff was allowed to amend the writ and declaration so as to make the suit against the defendant as executor of Jonathan Ballou, Jr.; and the defendant excepted. The testator was commonly called and knowui as Jonathan Ballou, but signed his will by the name of Jonathan Ballou, Jr.; and there was another man, older than he, called Jonathan Ballou. The defendant suffered no other injury from the amendment than the loss of a technical objection to a variance between the declaration and the evidence. 2. The plaintiff offered the deposition of George A. Little. The defendant, at the caption and at the trial, objected to the notice as defective in describing the action as one in which Washington Y. B. Tilton is defendant, not describing him as administrator or executor. The notice described the suit as pending in the county of Rockingham between this plaintiff and Washington Y. B. Tilton. There was no other action pending at the time in this county between those persons, in their own or in any representative capacity. The deposition was admitted, and the defendant excepted. 3. The defendant, being called as a witness by his counsel, testified that there were two men in Deerfield named Jonathan Ballou, of whom the testator was the younger; that he had received two letters from Mr. Little, before suit, which letters he produced and read to the jury as evidence upon the question whether the plaintiff’s claim had been exhibited to the defendant before suit; that he did not know whose claim it was that was exhibited to him by the letters, and did not know that the plaintiff had a claim until this suit was brought; — he also testified to the time when he settled his account as executor. The action was brought for the board of the testator. Subject to the defendant’s exception, the plaintiff was allowed to be sworn as a witness, and to testify concerning the board and his claim against the testator, and to conversations between himself and the deceased.</p> <p>The jury found a verdict for the plaintiff, which the defendant moved to set aside; and the questions of law thus raised were reserved.</p>

In Equity. The bill, by Frank W. Miller and George W. Marston against Stephen Scammon, alleged that the plaintiffs were the publishers of a daily newspaper ; that the defendant, fraudulently intending to deceive and injure the plaintiffs, and to expose them to loss and to a prosecution for libel, persuaded and procured them to insert in their newspaper an advertisement over the signature of the defendant, and which lie said was true, and which he alleged was necessary and…

Petition for partition, under chapter 228, Gen. Stats. The report of the committee was as follows: “ The committee, appointed by said court to make partition of the real estate described in the original petition, — the same being known as the Woodbury & Clement saw-mill and privilege, in Salem, — report: That they set off’ to said William G. Crowell the said saw-mill, with the appurtenances thereto belonging, to have and to hold the same for and during the first fifteen days…

Assumpsit, by William H. Y. Hackett against the county of Rockingham, for professional services as an attorney, rendered at the request of the defendants in Brown v. Reding, 50 N. H. 336, in defending that suit. The court reserved the question whether the defendants in that suit had authority to employ counsel to defend it at the expense' of the county.

Assumpsit, by John H. Brown and others against Thomas Leavitt and others. The first count was general, for labor and services and materials furnished in building a hotel at Great Boar’s Head. The second count alleged a special contract for building the same hotel. At a hearing before an auditor, it appeared that the hotel was in fact built under a contract in writing under seal.